Scotland Bill

Lord Forsyth of Drumlean Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

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.

[Lord Hope of Craighead]

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”.

[Lord Forsyth of Drumlean]

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.

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[Lord Hunt of Chesterton (Lab)]

I believe that some of our legislation has now been privatised. Is that not the reason for the noble Lord’s problem?

[Lord Forsyth of Drumlean]

All I can say is that it needs a bit of competition, then. I support my noble friend’s amendments.

[The Lord Bishop of Chester]

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—

[Lord Forsyth of Drumlean]

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?

[The Lord Bishop of Chester]

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.

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[Lord Wallace of Tankerness (LD)]

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.

[Lord Forsyth of Drumlean]

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.

[Lord Wallace of Tankerness]

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.

[Lord Forsyth of Drumlean]

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?

[Lord Wallace of Tankerness]

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.

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[The Marquess of Lothian]

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

[Lord Forsyth of Drumlean]

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

[The Marquess of Lothian]

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

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[Lord Kerr of Kinlochard (CB)]

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.

[Lord Forsyth of Drumlean]

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?

[Lord Kerr of Kinlochard]

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.

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[Lord McAvoy]

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—

[Lord Forsyth of Drumlean]

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?

[Lord McAvoy]

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.

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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.

[Lord Forsyth of Drumlean]

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”?

[Lord Keen of Elie]

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.

[Lord Forsyth of Drumlean]

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.

[Lord Keen of Elie]

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.

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[Lord Keen of Elie]

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.

[Lord Forsyth of Drumlean]

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?

[Lord Keen of Elie]

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.

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Moved by

[Lord Forsyth of Drumlean]

2: Clause 1, page 1, line 9, after “are” insert “recognised as”

[Lord Forsyth of Drumlean]

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—

[Lord McAvoy]

Fifty-four.

[Lord Forsyth of Drumlean]

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”.

[The Lord Bishop of Chester]

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.

[Lord Forsyth of Drumlean]

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.

[Lord Lang of Monkton]

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.

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[Lord Forsyth of Drumlean]

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

[The Marquess of Lothian]

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

[Lord Forsyth of Drumlean]

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

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

[Lord Davidson of Glen Clova]

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?

[Lord Forsyth of Drumlean]

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.

[Lord Norton of Louth]

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”?

[Lord Forsyth of Drumlean]

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.

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Moved by

[Lord Forsyth of Drumlean]

8: Clause 1, page 1, line 17, leave out “Scotland” and insert “the United Kingdom”

[Lord Forsyth of Drumlean]

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.

[Lord Empey]

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.

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[Lord Keen of Elie]

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.

[Lord Forsyth of Drumlean]

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?

[Lord Keen of Elie]

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.

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[Lord Forsyth of Drumlean]

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.

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Moved by

[Lord Forsyth of Drumlean]

9: Clause 1, page 1, line 17, at end insert—
“( ) Nothing in this section alters the sovereignty of the United Kingdom Parliament.”

--- Later in debate ---

[Lord Forsyth of Drumlean]

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.

[Lord McAvoy]

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?

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[Lord Tebbit (Con)]

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?

[Lord Forsyth of Drumlean]

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—

[Lord Mackay of Clashfern]

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.

[Lord Keen of Elie]

I hesitate to rise again—

[Lord Forsyth of Drumlean]

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.

[The Lord Bishop of Chester]

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

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

[The Marquess of Lothian]

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

[Lord Forsyth of Drumlean]

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

[Lord Keen of Elie]

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.

--- Later in debate ---

[Lord Keen of Elie]

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.

[Lord Forsyth of Drumlean]

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

[The Marquess of Lothian]

The Marquess of Lothian!

[Lord Forsyth of Drumlean]

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

[Lord McAvoy]

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.

[Lord Forsyth of Drumlean]

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.

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Moved by

[Lord Forsyth of Drumlean]

10: Clause 2, page 2, line 2, leave out “The Sewel Convention” and insert “Competence of the Scottish Parliament”

[Lord Forsyth of Drumlean]

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.

[Lord Norton of Louth]

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.

--- Later in debate ---

[Lord Keen of Elie]

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—

[Lord Forsyth of Drumlean]

I did take advice on this. The amendment has been tabled so the amendment is in order, surely.

[Lord Keen of Elie]

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.

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[Lord Forsyth of Drumlean]

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.

[Lord Keen of Elie]

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.

[Lord Forsyth of Drumlean]

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.

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[The Duke of Montrose (Con)]

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.

[Lord Forsyth of Drumlean]

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?

[Lord Maxton]

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?

[Lord Forsyth of Drumlean]

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.

[Lord Davidson of Glen Clova]

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.

[Lord Forsyth of Drumlean]

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.

[Lord Davidson of Glen Clova]

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.

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[Lord Keen of Elie]

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.

[Lord Forsyth of Drumlean]

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.

[Lord Keen of Elie]

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.

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[Lord Keen of Elie]

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.

[Lord Forsyth of Drumlean]

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?

[Lord Keen of Elie]

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.

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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.

[Lord Forsyth of Drumlean]

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?

[Lord Keen of Elie]

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.