Scotland Bill

Lord Wallace of Tankerness Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Crickhowell (Con)]

My Lords, I have not spoken previously in this debate but am prompted to do so partly because for a long time I was a member of the Constitution Committee and therefore take a good deal of note of what it says. I am also prompted to speak partly because of what has just been said. The trouble is that we do not have a written constitution but we are advancing ad hoc, step by step, and it is a very dangerous process. We will very shortly be debating a Wales Bill and I can just see it happening—we will be told that the Welsh Parliament has to be made permanent and cannot be altered by this British Parliament. This is a matter that affects the United Kingdom as a whole and therefore we should take seriously the clear observations of the Constitution Committee and of my noble friend Lord Forsyth.

[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.

--- Later in debate ---

[Lord Lang of Monkton (Con)]

My Lords, I had not intended to speak on these amendments because I thought that I would prefer to speak on Clause 1 stand part. However, it might save time if I speak now, not least because the debate has already ranged very widely over a number of more general points.

I also wanted to speak at an early stage to thank those noble Lords—in particular my noble friends Lord Norton of Louth and Lord Forsyth, and the noble and learned Lord, Lord Hope of Craighead—who made polite reference to the report of the Constitution Committee. My noble friend Lord Forsyth’s excellent speech in particular, in which he managed, in that wonderful tone of slightly supressed indignation, to quote from the report, reminded me just how strongly the committee felt about it when it prepared that report. Committees tend to present reports in fairly moderated terms, but these are very serious issues. Indeed, we were in a pretty bad mood to start with because we had already produced a report on the draft clauses, which came out some time before this Bill appeared, in which we drew the attention of the Government to some seven major points of constitutional principle that we thought should be replied to. The reply we eventually received was just more than two lines long. We had to express pretty considerable indignation at that.

While I am on the same theme, it is also a matter of regret to us that the Government have not yet been able to reply to our latest report, which we particularly hoped to have had ahead of the start of this Committee. I hope that that response will appear very soon.

In our report, we criticised very strongly the progeny of the Bill and the fact that the Government had committed to accept the Smith commission’s terms. I will not dwell on that point any longer; it has been very well covered by other noble Lords. We also placed strong emphasis on the importance of the position of the United Kingdom and, with all this demand-led devolution that has been going on, of stabilising and securing the sovereignty of the United Kingdom for the future. I am glad to say that another instalment of our work is on its way to your Lordships in due course on the union and devolution, which will cover that theme and, I hope, carry it forward.

Reverting to this debate, the clause we are looking at and the amendments to it are about sovereignty, which is a clear, absolute and easy-to-identify concept. All the amendments are about protecting it from potential inroads that arise from all the changes made in the other place that depart from the simple request made by the Smith commission. It is a declaratory clause. As my noble friend Lord Norton pointed out at Second Reading, by making a declaratory clause the core of a new parliamentary Bill it has been drawn up in the face of the Government’s own guidance on drafting legislation, which deplores such treatment.

Not only is it unwise, but it also compromises the subject by adding specific changes that were not requested by Smith. They are changes that weaken the principle of sovereignty, in particular the requirement under subsection (3) that there should be no abolition of the Scottish Parliament without a referendum for the Scottish people. Smith did not request that. That is not declaratory; it has specific substance. How does it protect the sovereignty of the United Kingdom?

I also ask my noble friend the Minister: why do the Government think that the Scottish National Party wanted that amendment to the Bill? It does not believe in permanence; it wants impermanence. It wants to undermine sovereignty and provoke the United Kingdom Parliament. Ultimately, it wants to break up the United Kingdom. Every extra concession granted makes that more possible.

The noble and learned Lord, Lord Wallace of Tankerness, referred to political reality. Yes, no one believes that the Scottish Parliament will be abolished and no one wants it to be abolished—you cannot put the smoke back in the bottle—but why compromise the position with qualifications of this kind in this important Bill? The Scottish National Party talks a lot about the sovereignty of the people—what one might call the “Braveheart philosophy”—but we have to wonder whether the clause makes the issue justiciable. Might some Scottish judge at some future date rule that the combination of permanence and a Scottish referendum in a statute overpowers the sovereignty of the United Kingdom Parliament? I do not know the answer to that, but I know that at Second Reading a number of my noble and learned friends identified this area as one that needed close attention.

[Lord Wallace of Tankerness]

The noble Lord has talked much about the sovereignty of the United Kingdom Parliament, as have other noble Lords. In a very recent lecture the right honourable gentleman the former Attorney-General Mr Dominic Grieve said about that:

“Today, at least in theory, this means that any government with a parliamentary majority could pass a Bill requiring us to collectively worship the moon every other Tuesday. Provided the Queen were minded to give royal assent to it … then that would be the law of the land and we could be punished for not complying”.

Is he really happy that the sovereignty of Parliament, which he asserts so vigorously and to which he is so wedded, could lead to the kind of outcome that the right honourable gentleman Mr Dominic Grieve said could happen?

[Lord Lang of Monkton]

As I do not know the context and full detail of what my right honourable friend the former Attorney-General said, I can hardly answer the noble and learned Lord. But I hope that sovereignty can be reconciled with common sense and realism. Certainly that would be my objective.

There is a threat to the sovereignty of the United Kingdom which is potentially raised by the wording of these clauses, and the intrusion of new elements into them which cloud out the specific issues of principle. If a court in Scotland did overrule the power of the United Kingdom and managed to pass a judgment that said that the United Kingdom Parliament was overruled by the view of the Scottish Parliament, it would not be devolution but separation. We must not plant the seeds for such a development in this legislation.

--- Later in debate ---

[Lord Keen of Elie]

On the last point, just to be clear, that is what I am saying.

[Lord Wallace of Tankerness]

Maybe I can help the Minister. Perhaps he is saying that this is all just declaratory, because after all it does not matter what you put in new subsection (3). That subsection just makes the permanence referred to in new subsection (1) conditional because there are conditions there which, if fulfilled, would not make it permanent.

[Lord Keen of Elie]

If I can complete the journey around the houses that the noble and learned Lord has begun on that point: it appears that new subsection (3) simply underlines the political structure—the declaratory statement contained in the clause as a whole. The noble and learned Lord, Lord Hope, observed that of course it goes a step further in so far as it introduces conditionality to the abolition of the Scottish Parliament, which I acknowledge. As to it being,

“a decision of the people of Scotland voting in a referendum”,

that term is capable of clear and objective definition in due course. Respectfully, however, it appears that that wording is sufficiently clear for these purposes.

--- Later in debate ---

[Lord Keen of Elie]

I notice what the noble and learned Lord says with regard to new subsection (3) in Clause 1.

[Lord Wallace of Tankerness]

Section 1(1) of the Northern Ireland Act 1998 also refers to the fact that it is a declaration that:

“Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section”.

Subsection (2) goes on to say:

“But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland”.

Obviously there is a context to that, but does the noble and learned Lord think that it might be helpful to add a further subsection indicating that, if a wish is expressed by a majority in a poll of the people of Scotland that the Scottish Parliament should be repealed, the Secretary of State will bring forward the necessary legislation to give effect to it?

[Lord Keen of Elie]

With respect, it does not appear to me that the two situations are immediately comparable. In those circumstances, it does not appear to me that that would add to new subsection (3) in Clause 1. I renew my submission that the noble Lord should withdraw the amendment.