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Scotland Bill

Volume 769: debated on Monday 21 March 2016

Third Reading

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Scotland Bill, has consented to place her interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Before the House begins the Third Reading of the Scotland Bill, it may be helpful for me to say a few words about Third Reading amendments. In line with our procedure on Third Reading amendments, the Legislation Office advised the usual channels last week that the amendment in the name of the noble and learned Lord, Lord McCluskey, and the further amendment in the name of the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord Stephen, on the Marshalled List for today’s Third Reading, fall outside the guidance. On the basis of that advice, the usual channels, who met today, have agreed to recommend to the House that Amendments 1 and 2 should not be moved. However, I expect my noble friend to address the issue raised by those amendments in his opening remarks on the government amendments in the same group. I hope that this approach will commend itself to the House, which is the ultimate arbiter in these circumstances.

Clause 2: The Sewel convention

Amendments 1 and 2 not moved.

Amendment 3

Moved by

3: Clause 3, page 2, line 21, at end insert—

“The subject-matter of section 43(1AA) of the Representation of the People Act 1983.”

My Lords, before turning to the government amendments in this group, I should like to address some points that noble Lords have previously expressed in relation to Clause 2. This clause is to implement the provision in the Smith commission agreement that the Sewel convention should be put on a statutory footing. The Smith commission agreement did not suggest any change in the effect of the convention. The clause recognises that this Parliament will not normally legislate on a devolved matter without the consent of the Scottish Parliament, but the convention recognises that the decision whether to legislate is for this Parliament to take.

I have noted the points made by noble Lords who have made clear in previous discussion of this clause their view that the word “normally” is not a word sufficiently precise for a statutory restriction. Of course, we are not seeking, and nor are we able, to impose a restriction on parliamentary sovereignty, and it has also been made clear in discussion that the word is suitable for indicating how a discretion will be exercised. This clause is clearly intended to indicate that the discretion of Parliament to legislate for devolved matters will continue exactly as before and that it is not intended to subject that discretion to judicial control. I would add that the words “it is recognised” that appear in Clause 2 also reflect the continued sovereignty of the United Kingdom Parliament and that it is for Parliament to determine when a circumstance may be considered not normal. This is not a matter that the courts could meaningfully engage with.

I turn to a number of technical amendments that we have tabled to Clauses 3 and 5 of the Bill. Noble Lords will recall that we gave notice on Report that we would table these amendments, which are necessary to ensure that the clauses in the Bill relating to elections work as intended. Under the Bill, and in line with the Smith commission agreement, the timing of Scottish parliamentary elections is devolved to the Scottish Parliament, subject to the provision that Scottish parliamentary ordinary general elections may not be held on the same day as a UK parliamentary general election, a European parliamentary general election or ordinary local government elections in Scotland. We have tabled amendments to Clause 3 to improve the drafting of the part of the reservation relating to the timing of ordinary local government elections in Scotland. These amendments do not change what is reserved, but rather clarify the drafting to ensure that the reservation achieves the intended outcome—that an ordinary local government election in Scotland may not be held on the same day as ordinary general elections for the Scottish Parliament.

In addition, we have tabled amendments to Clause 5 of the Bill to improve the drafting of the new provisions to be inserted into Section 43 of the Representation of the People Act 1983. These provisions relate to the reservation of the timing of ordinary local government elections where they clash with the date of an ordinary general election to the Scottish Parliament, and provide a mechanism for the Scottish Ministers to change the date of the local government elections where such a clash occurs. The amendments improve and clarify the drafting of the provisions providing a mechanism for setting an alternative date.

Amendments 3 to 9 are technical amendments, which will ensure that there is clarity in the clauses in the Bill relating to elections and that they operate as intended. I beg to move.

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

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

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

Secondly, the point would be conceded that there would be litigation. It may be litigation that the Government could conceivably win. Who knows? Once the genie was out of the bottle and the case was in court, a number of things could happen, which is the why the amendments, which have been debated previously—the amendment which the noble and learned Lord, Lord McCluskey, put down for today but has not moved and the amendment in my name and that of my noble friend Lord Stephen—make it very clear that the application of this clause,

“shall not be questioned in any court of law”.

That would have settled it. It would not even get to the stage of a case being raised. The wording that we used was taken from the Parliament Act 1911, and 105 years is a reasonably good test of time as to its effectiveness.

I note what the noble and learned Lord, Lord Keen, said about “normally” and that he said that the exercise of the legislative consent Motion will continue exactly as before, but I want to push him to be even clearer, because by using the words in the statute, which were used by Lord Sewel in 1998, the implication must be that that is all that is covered by the statute in fulfilment of the Smith commission recommendation. In fact, the Government seem to be trying to take this as narrowly as they can.

Therefore, it is arguable that we have a two-tier legislative consent Motion convention. There are the Sewel words, which are in statute, and the provisions that have triggered legislative consent Motions since the outset of the Scottish Parliament, and are found in Devolution Guidance Note 10, which are not in statute. Does Clause 2 have legal meaning? In which case, does the Minister accept that there are two tiers of legislative consent Motion? What are the implications of that? Or is Clause 2 legally meaningless, a bit of legislative window dressing, in which case why have we spent so much time debating it? Will he clarify which it is? Is this meant to have some legal meaning or not? If the courts were asked about this, it is not unreasonable for them to think that Parliament, having spent hours debating it, meant something to be said. How does he expect that would be interpreted?

Will the Minister address the concerns that have been reflected in the evidence to the Devolution (Further Powers) Committee of the Scottish Parliament, which produced its final report on the Scotland Bill on 11 March? These concerns reflect the interaction between legislative consent Motions and future legislation on the repeal of the Human Rights Act and the possible establishment of a British Bill of Rights. There was some concern that the Government might be trying to provide themselves with a loophole to get out of any means to get the Scottish Parliament to agree to things they might bring forward in their much-heralded and long-awaited reforms to human rights legislation.

Indeed, in May last year at the launch of the report by the Bingham Centre for the Rule of Law, A Constitutional Crossroads: Ways Forward for the United Kingdom, the very distinguished Professor Adam Tomkins, who was a member of the Smith commission and advises the Secretary of State for Scotland on constitutional matters, speculated whether a legislative consent Motion would be needed in the Scottish Parliament to repeal the Human Rights Act, but appeared very clearly to take the view that if any British Bill of Rights contained new rights infringing on the Scottish Parliament’s legislative powers or Scottish Ministers’ executive powers, a legislative consent Motion would be required, no doubt by reference to Devolution Guidance Note 10.

The Minister can make it very clear and allay all these concerns from the Dispatch Box in the next few minutes by saying that it is certainly not the Government’s intention to, as it were, thwart the Scottish Parliament having a legislative consent Motion if one were required under DGN10 in the event of a British Bill of Rights that would confer new responsibilities within the legislative competence of the Scottish Parliament or new legislative responsibilities on the executive competence of Scottish Ministers. These matters may not lead to litigation, but they could well do. In recent times, we have seen that the Trade Union Bill and the Immigration Bill, both currently before your Lordships’ House, have produced disagreements between the Scottish Government and the United Kingdom Government, so the question is by no means academic.

The final point, which is a new one, is on the words “devolved matters”, which appear in this clause. We are particularly disappointed that the clerks did not see fit to think that this fell within the rules for Third Reading. I certainly give notice that I will take this to the Procedure Committee, because if something happens between Report and Third Reading, surely it is reasonable that the House has an opportunity to consider it. What has happened here is that we have had the final report of the relevant Scottish Parliament committee, which specifically recommended that the words “devolved matters” should be clarified. It says:

“Furthermore, the Committee also seeks clarification from the UK Government on the legal meaning of the term ‘devolved matters’”.

I think I am right in saying that those words do not appear anywhere in the Scotland Act at the moment. Reserved matters are defined in Section 30(1) and by reference to Schedule 5, but of course there are other matters not within the competence of the Scottish Parliament that Section 29 of the Scotland Act sets out, and in so doing it brings in Schedule 4 to the Scotland Act. I would be interested if the Minister took this opportunity to give us a very clear understanding of what the Government mean when they use the words “devolved matters” in the Bill. It is a term that, as I understand it, has no legal definition at the moment, yet it clearly could be of some importance. I am sure that the Minister will welcome an opportunity—albeit that he could not do it in response to an amendment—to help the House by defining what the Government mean by “devolved matters”.

In conclusion, it is very regrettable that the Government have made no attempt whatever to move on these issues, despite some very compelling arguments. These are serious matters that are ripe for some constitutional conflict. If that happens, the Government have brought that upon themselves.

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

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

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

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

My Lords, when I spoke on this matter on Report, having tabled an amendment which dealt with the issue in slightly different terms from those proposed by Amendments 1 and 2 on the Marshalled List, I said that I would come back to the issue at Third Reading. But, on consideration of the various rules and practices, I decided not to renew my amendment in recognition of the fact that it would not be proper to bring it forward in those terms.

I am grateful to the Minister for the statement he has made, which goes a little way to addressing the problem. But I feel very strongly that this is an example of a missed opportunity, which could have been taken to clarify exactly what the Sewel convention is, to remove some of the problems to which the noble and learned Lord, Lord Wallace of Tankerness, referred, and to deal with the complications raised by the use of the word “normally”.

As I stressed on Report, my concern was to preserve the sovereignty of Parliament, which the Minister mentioned in his brief address. The problem with the method he has chosen is that it opens up the possibility of a challenge to the sovereignty of Parliament, which is the greatest danger of all, because it puts at risk the enforceability of legislation where the spectre, if I should put it this way, of the Sewel convention may be hanging over it. I understand that the Minister has gone as far as he believes he can—but, like others, I regret that he was not able to go further.

My Lords, it seems that the Government had an important decision to make on this issue. Did they want the Sewel convention, or the legislative consent convention as it has now become known, at least in the Scottish Parliament, to continue as a convention or did they want to convert it into statute? In truth, the answer is that they are making a mess of that decision. In a sense they are trying to do both, and in doing so they are creating bad legislation. They are continuing the convention—we have been told that and I certainly hope that that is the case. I hope that all legs and all elements of the convention will continue to be operated between the Scottish Parliament and the UK Parliament, the Scottish Government and the UK Government. But the Government have decided to take one rather limited and narrow—although, I accept, important—part of the convention into statute, and to do so in as limited and as loosely worded a way as possible, with words such as “normally” and with new expressions such as “devolved matters” that have not previously been used or defined in statute.

I now believe that the use of these words and the introduction of this vagueness has been quite deliberate on the part of the Government, to make it as ill-defined and declaratory as they possibly can. Why are they doing that? They are doing it to technically comply with the Smith commission’s recommendations, but this is not in the spirit of the Smith commission and it is not being done in a clear, sensible or coherent way. In summary, it is not a good way to legislate. If the Government’s excuse is that this is what the Smith commission told them to do, frankly, that is not a good enough excuse, because they can depart from the Smith commission—they have done so on the issue of abortion, for example—and the Smith commission was not perfect in every respect. On this issue it referred to only part of the Sewel convention—a mistake that I think the commission would readily admit to.

We should therefore try to get this right in legislation. When the UK Parliament legislates on devolved matters, we should refer not only to the Scottish Parliament but to a situation where consent is given by the Scottish Parliament to the UK Government altering the legislative competence of the Scottish Parliament or the executive competence of Scottish Ministers, because that is the full legislative consent convention. Is that serious? Yes, I believe that it is. The noble Lord, Lord Norton of Louth, who is the constitutional expert on these matters—not only in the Conservative Party but, in many respects, for the whole of this Chamber—highlighted the problem in Committee, saying that,

“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”.—[Official Report, 8/12/15; col 1495.]

Yet that is exactly what the Government are trying to do. There has been no change whatever from the Government: no variation, no compromise and no amendment.

Since the Second Reading debate on 8 December, more weight has been added to the argument against the Government’s position. My noble and learned friend Lord Wallace of Tankerness has already referred to the Scottish Parliament’s report. Very recently—on 11 March—the Devolution (Further Powers) Committee of the Scottish Parliament produced a 210-page document that looks at the proposals in the Scotland Bill, and in particular at Clause 2. That this sort of weighty, well-considered document has come forward at this late stage is complete justification for considering the amendments tabled by my noble and learned friend Lord Wallace and the noble and learned Lord, Lord McCluskey. The committee’s report has a section on the legislative consent convention which makes it clear that that is the correct term for the Sewel convention, as we have said before. With the exception of the Smith commission and the UK Government, it seems that that term has fallen into desuetude. The Bill should therefore refer to the legislative consent convention.

Professor Neil Walker, who is the Regius Professor of Public Law at the University of Edinburgh, stated in evidence to the Scottish Parliament’s Committee:

“I think that ‘Devolution Guidance Note 10’”—

which, we should remember, is a 1999 devolution guidance note, so the UK Government have been somewhat slow to catch up—

“has to continue to apply, because it specifies a convention that applies regardless of what the law says. If we are to reduce conventions to law, it would certainly help if we did so fully and not just partly”.

I hope that those words from the professor echo some of the comments I have already referred to, in particular the words of the noble Lord, Lord Norton, because this is exactly the point the noble Lord made. It was also made by my noble and learned friend Lord Wallace, and by the noble and learned Lords, Lord Hope and Lord Mackay. My noble friend Lord Steel, a former Presiding Officer of the Scottish Parliament, has confirmed the same point and it is my point, too.

In its conclusions and recommendations the Scottish Parliament Committee stated that the UK Government’s approach, as currently drafted, has,

“the potential to weaken the intention of the Smith Commission’s recommendations in this area”.

It wished all strands of the convention to be covered by the Bill and noted its disappointment at the lack of a response from the UK Government on this issue. It regretted that no changes have been made by the UK Government. It stated its view, which is shared by the Scottish Government, that the Scotland Bill still falls short and that this failure to fully incorporate into statute all strands of the legislative consent convention, as set out in Devolution Guidance Note 10, will only cause difficulties in the future.

That is also the view of many noble and learned Lords from around the Chamber. Some of them have considerable parliamentary and ministerial experience; others have very considerable legal and judicial experience. But sadly the Government, of course, know better, and we find ourselves where we are today.

My Lords, it may be stretching the tolerance of the House for a fifth Scottish lawyer to join in this discussion, so I will confine myself to two issues. The first is Pepper v Hart. It is well worth understanding just how limited the application of that doctrine may be. If the noble and learned Lord the Advocate-General is looking for an illustration of the approach recently taken by the Court of Session, he will find it in the case of British Petroleum v Edinburgh and Glasgow licensing boards.

Secondly, this is about the most political piece of legislation that one could possibly imagine. Within its terms is the opportunity for great political disagreement. It seems to me that the way in which the Government are now proceeding will in some respects justify that disagreement by leaving open an important porthole for those who wish to challenge the will of this House and indeed of the other place.

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

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

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

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

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

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

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

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

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

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

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

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

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

Before the noble and learned Lord sits down, although that was perhaps his final point from the Dispatch Box on this, he said in response to my noble friend Lord Stephen that this is now stating in a declaratory way that the Sewel convention exists. However, it is worth reminding the House that paragraph 22 of the Smith commission report said:

“The Sewel Convention will be put on a statutory footing”,

not that it will be declaratory that it exists.

Amendment 3 agreed.

Amendment 4

Moved by

4: Clause 3, page 2, leave out lines 30 to 33

Amendment 4 agreed.

Clause 5: Timing of elections

Amendments 5 to 9

Moved by

5: Clause 5, page 6, line 11, leave out “(1ZA)” and insert “(1AA)”

6: Clause 5, page 6, line 12, leave out from beginning to first “The” in line 13 and insert “After subsection (1A) insert—

(1AA) ”

7: Clause 5, page 6, line 13, leave out “date specified by” and insert “day specified in or fixed under”

8: Clause 5, page 6, line 14, leave out “date is the same date as” and insert “day is the day of”

9: Clause 5, page 6, leave out lines 16 to 22 and insert—

“(1AB) Where subsection (1AA) prevents the poll being held on the day specified in or fixed under subsection (1), the poll is to be held on such other day as the Scottish Ministers may by order specify.

(1AC) An order under subsection (1AB) is subject to the affirmative procedure.”

Amendments 5 to 9 agreed.

Clause 40: Roads

Amendment 10

Moved by

10: Clause 40, page 43, line 11, at end insert—

“( ) In paragraph (d) of that reservation, after “the Road Traffic Act 1988” insert “, except so far as relating to the parking of vehicles on roads,”.”

My Lords, I shall speak also to Amendments 11 to 16 and 19 to 21. As I indicated on Report, a number of technical amendments are necessary to the roads provisions. Amendments 10, 11, 13, 16 and 20 are technical amendments and complement the amendment that the Government brought forward on Report on the issue of responsible parking. That amendment, which commanded cross-party support on Report, gives the Scottish Parliament the power to legislate for parking vehicles on roads, an issue that is of interest to many people in Scotland. That amendment now appears in the Bill at Clause 40(4). Following helpful discussion between the Department for Transport and the Scottish Government, these technical amendments will bring full clarity to the power. I will briefly set out the effect of each of these amendments.

Amendments 10 and 11 amend the amendment made on Report, which gave power to the Scottish Parliament to make provision for parking on roads. Amendments 10 and 11 make clear that on-street parking is excepted from the reservation of the subject matter of the Road Traffic Act 1988 and is not a general exception from all road transport reservations.

Amendment 13 removes a reference to the regulations made by Scottish Ministers being subject to the negative procedure. The reference is unnecessary as it is subsequently replaced by Amendment 20, which amends the Road Traffic Act 1988 to stipulate that regulations relating to parking made by Scottish Ministers will be subject to the negative procedure.

Amendment 16 transfers the functions of the Secretary of State under the Road Traffic Act 1988 in relation to parking of vehicles on roads in Scotland to Scottish Ministers so far as is exercisable within their devolved competence. It does this by changing references to the Secretary of State to “national authority”, which for these purposes is Scottish Ministers. Amendment 16 also includes a provision that will require the Secretary of State for Transport to consult Scottish Ministers if making regulations relating to parking of vehicles on roads in Scotland.

I can assure the House that the amendments, while necessary, do not alter the substance of the policy. They do not provide any further powers but simply seek to ensure that the implementation of the powers is effective. As I explained on Report, irresponsible parking has been of concern to many people across Scotland, and I am glad that we have been able to bring clarity to the legal position.

Amendments 12, 14 and 15, to which I alluded on Report, ensure that the functions being transferred to Scottish Ministers in relation to speed limits and road signs in this Bill are aligned with the powers being transferred to the Scottish Parliament. They are also consistent with the functions being transferred to Scottish Ministers for parking. Amendment 19 preserves the effect of amendments previously made to the Road Traffic Regulation Act 1984 by the Scotland Act 2012.

These amendments therefore ensure and clarify that the Secretary of State continues to be responsible for, for example, exempting vehicles used for the reserved purpose of defence from parking and speed limits and road signs in Scotland. The Secretary of State will need to consult Scottish Ministers before exempting such vehicles. Scottish Ministers will have powers to make provision by virtue of the Bill for road signs, parking and speed limit exemptions to the same extent that the Scottish Parliament can legislate for these same policy areas. Amendment 21 is a minor drafting correction to an amendment made on Report which will enable the Secretary of State to make provision in connection with reserved matters. I beg to move.

My Lords, I thank the Minister for introducing these amendments. We particularly welcome those relating to pavement parking and recognise that the others are largely technical in nature. We are therefore more than happy to support them.

The amendments on pavement parking reflect amendments which this side of the House tabled both in the other place and in Committee in your Lordships’ House and which were welcomed honourably by the Minister. The work of the organisations, Living Streets and Guide Dogs Scotland, was invaluable and I extend my thanks to them.

I know that in the grand scheme of things the amendments might be regarded as minor, but they are important to a big section of our community. Pavement parking is dangerous for pedestrians, especially people with sight loss, parents with pushchairs, wheelchair users and other disabled people. People with sight loss are particularly affected, as they can be forced into oncoming traffic which they cannot see. A survey by Guide Dogs Scotland showed that 97% of blind or partially sighted people encounter problems with street obstructions and some 90% of them had experienced trouble with a pavement-parked car. Pavements are not designed to take the weight of vehicles, and cars cause paving to crack and tarmac to subside. This damage makes pavements uneven, creating a trip hazard for pedestrians, particularly blind and partially sighted people. I know that the cost of repairing pavements is a parochial issue, but it is a burden for local authorities, which in Scotland are under particular pressure as a result of government cuts—SNP Government cuts, I hasten to add. We are therefore glad that the Scottish Government now have the necessary legislative competence to put measures in place to prevent this happening. I repeat my thanks to the Minister and welcome the amendments.

My Lords, before the Minister responds perhaps I could repeat a point I made in Committee about Clauses 40 to 42 and Schedule 2, and the amendments that the Minister has rightly laid before us today. I am emboldened to do so by a phone call from the noble Lord, Lord Sanderson of Bowden, who is a former constituent of mine. He wanted me to make it clear that there was never any risk of him voting for me, but on this issue we speak with one voice.

Those of us who live in the borders, whether on the Scottish or the English side, are naturally concerned about the growth of what appear to be quite minor changes in legislation concerning parking, traffic signs, speed limits, vehicle regulations and even the drink-driving laws. There is a danger that these regulations will become self-aggrandising. We have different regulations just for the sake of having different regulations. We find ourselves having to make journeys by road that cover both jurisdictions, and it is extremely confusing if there are too many regulations that differ. The point I want to put to the Minister is this. He referred several times to discussions between the Department for Transport and the Scottish Government. Can we be assured that those discussions will continue so that we can seek to minimise the differences in regulations on each side of the border?

I thank the noble Lord, Lord McAvoy, for his comments and support. This was an issue that the party opposite raised in Committee and the Government are pleased to have been able to address what has been a long-standing lack of clarity in the law. With regard to the noble Lord, Lord Steel, yes of course I can assure him that discussions will continue between the Department for Transport and the Scottish Government. A theme that has run through all our debates on this Bill is the need for close intergovernmental co-operation. That is something which I feel strongly about, given my responsibility for these matters, so anything I can do to improve those intergovernmental relations, I will certainly do.

Before we move to the final group of amendments, as we near the conclusion of the Bill I want to take this opportunity to thank noble Lords for all their work, in particular all those who have moved amendments or spoken to them, and who have taken the time to meet me and my noble and learned friend the Advocate-General to discuss their concerns. I would also like to thank the Constitution Committee, the Economic Affairs Committee and the Delegated Powers and Regulatory Reform Committee for their very careful consideration of this Bill. Indeed, I thank my noble and learned friend the Advocate-General, who is no longer in his place because no doubt he is preparing for the Immigration Bill to come, and my noble friend Lord Younger of Leckie for all their support. Finally, I thank officials from across Whitehall who have provided invaluable support throughout the process. We have covered a lot of ground and many subjects, and their support is much appreciated.

Noble Lords have provided robust challenges at times; I recognise that opinions have been divided on aspects of the Bill and I respect the strong views that are sincerely held. Your Lordships’ House has fulfilled its customary role of providing a thorough and penetrating scrutiny of the legislation. I said at Second Reading that I thought it was a precondition of earning the trust of the Scottish people, after the independence referendum, that we should keep the promises that were made during that referendum. That is exactly what this Bill does, as well as making the Scottish Parliament more financially accountable. I am particularly grateful to the Front Benches opposite for their support. It recognises that the promises made during the referendum were joint ones.

There was much talk during the independence referendum of Project Fear, and I think that it has already been observed elsewhere that the fears raised by the supporters of the union have proved all too justified while the fears put about by those arguing for separation have proved to be groundless. They have proved to be groundless because we have delivered on the promises we have made. I think that we have established beyond any doubt that pulling Scotland out of the United Kingdom could never satisfy the Smith no-detriment principle, and in its heart of hearts I suspect that the leadership of the SNP knows it.

Political discourse in Scotland is already changing as a result of the Bill. Now we must move the debate on from what the powers are to how they are used. I am confident that the new Scotland Act will prove an enduring settlement, strengthening Scotland’s place within the United Kingdom.

My Lords, I echo a lot of what the Minister said. There was a lot of contention and division in our country during the referendum following the vow, thanks to the Daily Record, and the Smith commission, about which a lot of mistrust was put about as to the final conclusions of how we would deal with it. I am proud of the part that my party and its members played in arriving at these conclusions. We have shown Scotland that the people who do not wish to separate from the rest of the United Kingdom can deliver, by all accounts, the demands and wishes of the Scottish people to have more powers for the Scottish Parliament without necessarily separating from our friends and colleagues throughout the rest of the United Kingdom.

Collectively, this House, despite some rumbustious moments, some slight scepticism and very heavy scrutiny, has fulfilled its role in passing the Bill and ensuring that it is a better Bill than when it came here. We will send it back to the other place and hopefully it will be accepted there.

Westminster as a Parliament has delivered the wishes of the Scottish people. We can regain their trust, despite the cynicism put about at the time of the referendum. Collectively—although there have been various differences, which no doubt will continue—I have no doubt that we have delivered for the people of Scotland and we can look them in the face.

Amendment 10 agreed.

Amendment 11

Moved by

11: Clause 40, page 43, line 14, leave out subsection (4)

Amendment 11 agreed.

Clause 41: Roads: traffic signs etc

Amendments 12 and 13

Moved by

12: Clause 41, page 44, leave out lines 34 to 37 and insert—

“(a) in relation to a function so far as exercisable within devolved competence, within the meaning of the Scotland Act 1998, means the Scottish Ministers;(b) otherwise, means the Secretary of State;”.”

13: Clause 41, page 45, line 10, leave out subsection (24)

Amendments 12 and 13 agreed.

Clause 42: Roads: speed limits

Amendments 14 and 15

Moved by

14: Clause 42, page 46, line 30, leave out “relevant” and insert “national”

15: Clause 42, page 46, line 39, leave out paragraph (g)

Amendments 14 and 15 agreed.

Amendment 16

Moved by

16: After Clause 42, insert the following new Clause—

“Roads: parking

(1) The Road Traffic Act 1988 is amended as follows.

(2) Section 20 (parking on verges etc: definition of “heavy commercial vehicle”) is amended as follows.

(3) In subsection (5) for “Secretary of State” substitute “national authority”.

(4) At the end add—

“(8) In subsection (5) “national authority”—

(a) in relation to a function so far as exercisable within devolved competence, within the meaning of the Scotland Act 1998, means the Scottish Ministers;(b) otherwise, means the Secretary of State.(9) Before making any regulations under subsection (5) in relation to vehicles used on roads in Scotland, the Secretary of State must consult the Scottish Ministers.”

(5) Section 41 (regulation of construction, weight, equipment and use of vehicles) is amended as follows.

(6) In subsection (1) for “Secretary of State” substitute “national authority”.

(7) After subsection (2) insert—

“(2A) In subsection (1) “national authority”—

(a) in relation to a function so far as exercisable within devolved competence, within the meaning of the Scotland Act 1998, means the Scottish Ministers;(b) otherwise, means the Secretary of State.(2B) Before making any regulations under this section in relation to the parking of vehicles on roads in Scotland, the Secretary of State must consult the Scottish Ministers.””

Amendment 16 agreed.

Amendment 17

Moved by

17: After Clause 70, insert the following new Clause—

“The Barnett Formula

Within 30 days of the date on which this Act is passed, the Secretary of State shall publish as a memorandum, supplementary to the agreement between the Scottish Government and the United Kingdom Government on the Scottish Government’s fiscal framework, a document containing a full description of any agreement reached between the governments relating to the future of the Barnett Formula or its application, amendment, reassessment or replacement in the future, including any agreement as to when any such change is intended to be considered by the two governments in the future.”

My Lords, I promise to be brief. I have been in this House just short of four decades and I have noticed that the easy way to empty the House at the end of Oral Questions is to read out the name of a measure that contains the word “Scotland”. In raising the matter that the amendment raises, I also realise that, to get a collective groan from around the House, the words “Barnett formula” are a pretty good start.

I do not want to repeat any of the arguments made. My one purpose in raising the amendment, which I think speaks for itself on what it seeks, is to assist the people of Scotland to understand the truth of the manner in which Scotland’s public expenditure is to be financed following the arrangements made under the fiscal framework. I do not think that very many people in Scotland have grasped what has happened. Indeed, there has been no opportunity to discuss the matter in the other House before the Bill is passed. My only purpose in moving the amendment is to encourage the Government to produce a publication of the kind requested that shows the truth of that financing so that we can all go out, talk about it explicitly in the face of the superb SNP propaganda machine, which feels no obligation to tell the truth, the whole truth and nothing but the truth.

I would have sat down at that point, but because the Minister has made some general remarks of a kind that would normally have been made, in my early days here, on the Motion that the Bill do now pass, I simply say that I am unhappy with the Bill. It subordinated the United Kingdom Parliament to a group of 10 Members of the Scottish Parliament, who took eight or nine weeks to produce a document. Since May last year we have been obliged to spend our time implementing the Government’s version of that document. I do not think that all the proposals in the Smith commission report were fully thought through and, of course, Ministers in this House were plainly given a brief to accept no amendments. They did particularly well in dealing with that difficult brief, but I do not think that their position was a very sound one.

One of our purposes was to give the other House an opportunity, before the Bill passed into law, to discuss the fiscal framework. I repeat what the noble Lord, Lord Forsyth, often said, which is that the other House should have been given that opportunity.

I am sure that the noble and learned Lord will recall, in speaking about the role of the United Kingdom Parliament, that my noble friend Lord McFall of Alcluith suggested that the Government should deliver annual reports to both the UK and Scottish Parliaments on the progress of the fiscal framework discussion and the devolution settlement in general. This was surely an important development.

I shall conclude by saying that I acknowledge that that is exactly correct. It was an extremely worthwhile proposal and I am thankful that, one way or another, as the months and years pass by, we will be able to get the whole truth out about what has happened in relation to this settlement.

My Lords, the noble and learned Lord, Lord McCluskey, says that he has been involved in these matters for some 40 years. I have been involved, at one end of the building or the other, for 50—33 at the other end and 18 or so at this end—dealing to a large extent with financial and Treasury matters, but I have to say that I cannot recall any financial issue, in either House, that has been dealt with in such an inadequate way as the legislation that we have in front of us. The fiscal framework, which is at the heart of the Bill, has still not been debated at all in the House of Commons. We had a very truncated debate in Committee, with no debate on the fiscal framework, and very limited debate thereafter.

The Minister referred, in the debate on the previous group, to the promises made in the course of the referendum campaign. He described them as joint promises, but they were made, of course, with absolutely no consultation. The so-called vow was made during the referendum campaign and the statement by the Prime Minister was made the morning after the referendum took place. The deal that has been struck perpetuates a grossly unfair balance for those paying taxes and involved with financial matters in England, Wales and Northern Ireland and perpetuates the very substantial subsidy that is given to Scotland. Members of Parliament have not had any opportunity whatever to debate this. One must hope that their constituents will hold them to account when the details begin to sink in to the consciousness of the public at large in the parts of the United Kingdom other than Scotland.

The noble and learned Lord’s amendment is very much to be commended. We are stuck with the Barnett formula, which we all know the late Lord Barnett himself decided was obsolete long before his lamented departure. The reality is that we are now going to go on doing this with virtually no prospect of the matter being changed again in five years’ time or beyond. That is a dreadful situation as far as taxpayers in the rest of the United Kingdom are concerned. I certainly support the noble and learned Lord’s suggestion that we at least ought to know the details of what has been agreed.

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

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

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

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

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

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

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

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

It goes on to refer to the,

“continuation of the Barnett allocation for resources”.

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

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

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

There seems to be some uncertainty about who observed:

“With great power comes great responsibility”.

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

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

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

“The price of greatness is responsibility”.

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

My Lords, as the noble and learned Lord, Lord McCluskey, said, the Barnett formula has been the subject of significant debate during the passage of the Bill and has been raised in various statements and at other opportunities. I do not propose to go over well-worn ground, but I recognise the strong views that the formula evokes, particularly in this House. As has been said at other stages in the Bill’s progress, the retention of the Barnett formula is a manifesto commitment not just of the Government but of all three of the main UK parties. It will therefore continue to determine changes to the block grant resulting from changes in UK government departmental spending.

However, as my noble friend Lord Selkirk noted, the significance of the Barnett formula will be reduced, as over 50% of the Scottish Government’s budget will, in future, come from taxes raised in Scotland. As has been said before, the size of that budget will be determined increasingly by changes in Scottish taxes.

The amendments tabled by the noble and learned Lord call for a memorandum to be published within 30 days of the Scotland Act passing, providing additional detail on the future of the Barnett formula. We are already delivering the intent of these amendments. On Friday, the Chief Secretary to the Treasury placed in the Libraries of both Houses a supplementary technical annexe to the fiscal framework agreement. This sets out in detail how Barnett will operate in future, alongside the adjustments for new tax and welfare powers. Much of the detail of how Barnett operates is already published in the Statement of Funding Policy, which was last updated in November. The details of how the devolution settlement operates are also set out at each fiscal event.

In addition, we have listened to the views expressed in this House about transparency and reporting. The UK Government and the Scottish Government have agreed to report annually on the operation of the fiscal framework. Finally, in response to the House of Lords Economic Affairs Committee, the Treasury has undertaken to look at how the whole operation of the Barnett formula can be made more transparent. We on this side of the House fully expect scrutiny to continue beyond the passage of the Bill and therefore I urge the noble and learned Lord to withdraw his amendment.

My Lords, I can be brief indeed. I am encouraged by what the Minister has said. Indeed, I have been encouraged by the remarks of other noble Lords who have supported me. The noble Lord, Lord Selkirk of Douglas, mentioned the concept of responsibility. I believe that it is our responsibility, having been fortunate enough to be here and to be informed about the details of what has been happening, to use what influence we can in Scotland, and indeed in the rest of the United Kingdom, to make known the truth about all the circumstances surrounding this settlement. I shall do my best. In the mean time, encouraged by what I have heard, I beg leave to withdraw.

Amendment 17 withdrawn.

Clause 71: Commencement

Amendment 18 not moved.

Schedule 2: Roads: consequential and related provision

Amendments 19 to 21

Moved by

19: Schedule 2, page 80, line 25, leave out paragraphs 8 and 9 and insert—

“8 (1) Section 86 (speed limits for particular classes of vehicles) is amended as follows.

(2) For “national authority” in each place substitute “relevant authority”.

(3) Omit subsection (9).

9 In section 88 (temporary speed limits) for “national authority” in each place substitute “relevant authority”.”

20: Schedule 2, page 84, line 30, at end insert—

“Road Traffic Act 1988 (c. 52)In section 195 of the Road Traffic Act 1988 (regulations) after subsection (4) insert—

“(4ZA) Regulations made by the Scottish Ministers under section 20(5), 36(5) or 41(1) are subject to the negative procedure.””

21: Schedule 2, page 87, leave out lines 20 to 26 and insert—

“(a) make any provision under section 87(1)(b) of the Road Traffic Regulation Act 1984 that could be made by the Scottish Ministers, and(b) in connection with any provision made by virtue of paragraph (a), make any provision under any of the traffic signs powers mentioned in paragraph 33(3) that could be made by the Scottish Ministers.”

Amendments 19 to 21 agreed.


Moved by

My Lords, I do not want to detain the House for more than a moment, but the passing of this Act by the House today is a major step in the history of Scotland. Donald Dewar was fond of repeating that devolution was not an event but a process, and so it has proved to be—and I have no doubt will continue to prove to be. This Act completes a process begun correctly in the original Scotland Act 1998. However, as I said at the time, that Act created a Parliament with substantial powers over expenditure but no responsibility for raising any of the money that it spent. This change is therefore of major significance and brings us closer to a quasi-federal relationship in Britain—closer in fact to the ideas in the Solemn League and Covenant way back in 1643.

In his magisterial new book Independence or Union, Professor Tom Devine says that his own preferred choice in the referendum,

“would have been to support a more powerful Scottish Parliament via some form of enhanced devolution. That opinion was in the end not available in the wording of the referendum. Many of those who thought like me were effectively disenfranchised”.

That is what we have delivered and I believe that it now accords with the views of the majority of Scots, recognising as they do that we had a lucky escape in the referendum following the collapse of the global oil price.

That is nothing new. We have always been interdependent in these countries. One of our greatest Secretaries of State, Tom Johnston, put it thus during the great depression:

“What purpose would there be in our getting a Scottish parliament in Edinburgh if it has to administer an emigration system, a glorified poor law and a desert?”.

We needed the strength of the United Kingdom then and we need it now. This Act creates an obligation and indeed an expectation that our two Governments will act together in the best interests of our people. That means that Ministers such as George Osborne need to abandon silly anti-nationalist rhetoric when dealing seriously with annual budgets and that the SNP need to stop blaming London for every one of its own shortcomings. Scottish people expect better than that and this Act provides a sensible foundation for the way forward.

I have one final thought. We in this House have been able to adjust and improve the Bill since it left the Commons. We have had to do that without the assistance of the SNP, which continues its absence from this institution. I hope that that may change, not least so that it can join in the efforts to reform this Chamber and make it even more of a sounding board for the United Kingdom as a whole.

Bill passed and returned to the Commons with amendments.