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House of Lords

Tuesday, 8 December 2015.

2.30 pm

Prayers—read by the Lord Bishop of Bristol.

Introduction: Baroness Fall

2.37 pm

Catherine Susan Fall, having been created Baroness Fall, of Ladbroke Grove in the Royal Borough of Kensington and Chelsea, was introduced and took the oath, supported by Baroness Rawlings and Lord Feldman of Elstree, and signed an undertaking to abide by the Code of Conduct.

Introduction: Baroness Primarolo

2.43 pm

The right honourable Dame Dawn Primarolo, DBE, having been created Baroness Primarolo, of Windmill Hill in the City of Bristol, was introduced and made the solemn affirmation, supported by Baroness Royall of Blaisdon and Lord Monks, and signed an undertaking to abide by the Code of Conduct.

Syria and Iraq: ISIS


2.48 pm

Asked by Lord Naseby

To ask Her Majesty’s Government what military action the United Kingdom is undertaking against ISIS in Syria and Iraq.

The Minister of State, Ministry of Defence (Earl Howe) (Con): My Lords, UK forces are striking Daesh targets in Iraq and Syria, including command and control facilities, lines of communication, military equipment and defensive positions. We are also providing intelligence, reconnaissance and surveillance to support coalition operations in both Syria and Iraq. UK military personnel are providing specialist training for Iraqi security forces, including Kurdish Peshmerga.

Lord Naseby (Con): My Lords, given that the war has already lasted five years, does my noble friend recognise that while bombing is important, it will never defeat ISIS unless there is a strong army on the ground? Will he therefore re-read the speeches made last Wednesday by the noble Lords, Lord Wright of Richmond, Lord Ashdown, Lord Owen and Lord Dannatt—and possibly my own—and recognise that the only hope of defeating ISIS is urgently to find a way to deploy the army of Assad and his allies? Otherwise, ISIS will survive and cause mayhem in the rest of the world.

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Earl Howe: My Lords, it may encourage my noble friend to know that I have re-read the debate held last week and I fully agree that Daesh has to be defeated on the ground. The most likely way to defeat Daesh on the ground is to bring about an end to the Syrian civil war, which would allow those keen to support a unified, inclusive and peaceful Syria to unite against Daesh. That could include Syrian moderate opposition forces, Syrian Kurds, or an army of internationally supported Syrian government forces. But we believe that such unity will come about only once Bashar al-Assad leaves the scene.

Lord Wright of Richmond (CB): My Lords, when the Minister re-read the debate held last Wednesday, he may have noted that I suggested that if our Tornados and Typhoons are sent into action without adequate co-ordination and consultation, there might be a serious risk of collision with the Russian and Syrian forces. Can he tell the House what clearance has to be sought from what I understand is the joint flight clearance centre in Damascus, and how much co-ordination is there with the Syrian authorities before military action is taken?

Earl Howe: My Lords, all UK and coalition missions are co-ordinated by the US-led Combined Air and Space Operations Centre in Qatar. The coalition has implemented safe separation measures for aircraft operating in Syria which reflect the provisions of the United States/Russia memorandum of understanding to prevent flight safety incidents over Syria. Those measures are kept under constant review, including in the light of the Russian jet incident with Turkey. Our own aircraft operate over Syria as part of the coalition campaign and are covered by those measures.

Lord West of Spithead (Lab): My Lords, the Minister will be aware that in 2008, the only way we stopped the uprising in Iraq and destroyed al-Qaeda there was when General Petraeus got the Sunni tribes fully on side to turn against it. We did that by bribing them and talking to them. Are we doing that now to ensure that they turn against IS, because up until now they have felt that IS is better for them than the Government in Baghdad?

Earl Howe: My Lords, there is no doubt that the Kurds will need to be part of a long-term solution. I believe that they must play an important role in a political settlement for Syria. As part of that, they must recognise the importance of Syria’s territorial integrity and the parameters set out in the Geneva communiqué. However, I recognise the force of what the noble Lord has said about the lessons learnt in Iraq, and I am sure those lessons will not be lost as we go forward.

Lord Howell of Guildford (Con): My Lords, although this Question is about Syria and Iraq, has my noble friend noticed that Daesh is forming very strong centres in Sirte and Derna in Libya, and elsewhere in the Maghreb? What attention are we going to pay to those areas, which may well turn out to be even more important than Raqqa as centres of operation for Daesh?

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Earl Howe: My Lords, as my noble friend will be aware, we are veering slightly off Iraq and Syria, but I can tell him that the presence of Daesh in Libya is causing us considerable concern and is the focus of attention across the coalition. Beyond that, I cannot say more at this stage.

Baroness Jolly (LD): My Lords, it would help if we could restrict the flow of ammunition to Daesh. We know that it is using ammunition produced by our allies and coalition partners. What steps are the Government taking to ensure that the supply chain is being broken?

Earl Howe: A number of measures are being taken to ensure that smuggling of equipment and ammunition is blocked. The Syrian moderate opposition forces have been quite successful in blocking those routes, particularly between Turkey and Syria. More widely, there is an international effort to close down the sources of finance that Daesh has as its disposal. A lot of that work, I am proud to say, is being led by the United Kingdom.

Lord Touhig (Lab): My Lords, it is right to label ISIL as evil and murderous, because it is those things. But are we asking why it is? What research and studies are we undertaking to get into the mind of ISIL, so that we better understand its motives, and the many structures and layers of operation that enable it to recruit in countries as varied and diverse as Afghanistan and Britain, and to produce a blueprint to create a state? If we are to help rid the world of this ideology, we need first of all to know our enemy as well as he knows himself.

Earl Howe: The noble Lord is absolutely right. The UK is leading international efforts to counter Daesh’s poisonous ideology. Our work with the internet industry, for example, has helped to stop the proliferation of Daesh propaganda. We announced at the UN General Assembly in September that the UK would host a new coalition communications cell. That cell helps countries that have previously lacked the means or knowledge necessary to deliver effective communication interventions against Daesh to do so. It is already helping to drive the coalition strategic communications to counter Daesh’s extremism and ensure, essentially, that no media space is left uncontested.

Lord Singh of Wimbledon (CB): My Lords, does the Minister agree that we cannot destroy a negative ideology based on a harsh interpretation of medieval Islam by bombs and bullets alone? Is the Minister aware that the Muslim community and Muslim leaders have condemned Daesh, and will the Government work with them to ensure that their message of condemnation is carried to every mosque in the country—preferably in English, which is the language young Muslims best understand?

Earl Howe: My Lords, this is a central theme of the Government’s counterextremism strategy, about which I spoke in last week’s debate. I fully agree with the noble Lord that to disrupt and defeat Daesh and its ideology requires more than just military action. It requires the

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disruption of its ideology in the ways that I described, and discrediting it across the world in the way the noble Lord indicated.

Health: Adult Pneumococcal Vaccination


2.57 pm

Asked by Baroness Greengross

To ask Her Majesty’s Government what plans they have to improve the efficacy of the adult pneumococcal vaccination programme and to ensure optimal coverage of target populations in the United Kingdom.

The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con): My Lords, vaccination of children, adults and risk groups with pneumococcal and influenza vaccines has led to a significant reduction in pneumococcal disease in the UK. The Joint Committee on Vaccination and Immunisation published an interim statement on adult pneumococcal vaccination on 18 November. The JCVI statement is subject to stakeholder consultation before being finalised. The interim statement advises continuation of the existing adult pneumococcal vaccination programmes. The Government will respond fully once the advice is finalised.

Baroness Greengross (CB): I thank the Minister for that reply. As he knows, this disease puts an enormous pressure on the NHS and on patients. The recent report that he mentioned from the ONS showed that pneumonia was the underlying cause in almost a fifth—19%—of the 43,900 excess deaths in England and Wales just last winter. The recent review by the Joint Committee mentioned by the Minister recommended no changes to the adult pneumococcal vaccination programme at this time, which is a bit surprising. The committee is currently consulting, as the Minister mentioned, and it acknowledged that there are weaknesses with the levels of protection offered to at-risk adults. Will the Minister look into this issue and work to make sure that the pneumococcal vaccination programme provides optimal protection for vulnerable adults?

Lord Prior of Brampton: My Lords, the report by the JCVI was very clear in its recommendation that the existing vaccination, PPV, was the most appropriate for those aged over 65 and that PCV 13, which is the vaccination used for young children, because it provides herd protection—that is, young people who are treated with it can no longer carry the disease—offered the best long-term protection for the elderly as well.

Lord Hunt of Kings Heath (Lab): My Lords, this year community pharmacists have been given the opportunity to provide NHS vaccinations. Can the Minister say something about how successful that has been? Does he think that there is much greater potential for community pharmacists to do more work for the NHS in this and other areas?

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Lord Prior of Brampton: My Lords, there is a huge and growing role for community pharmacy in delivering services that have traditionally been supplied by the NHS. If we were to discuss this in five years’ time, I am sure that we would see a far greater role played by community pharmacy. I am not sure that I can give the noble Lord a specific answer on vaccinations. I can just say that the flu vaccination rate so far this year to date is 66%. Last year, by the end of the winter, it was 72%, so we are roughly on target to do the same as last year.

Baroness Walmsley (LD): My Lords, the service standards say that local authority directors of public health have a key role to play in ensuring good coverage of vulnerable groups in their area. Given that fact, what assessment has the Minister’s department made of their ability to carry out that role, given the recent large cuts in public health budgets?

Lord Prior of Brampton: My Lords, the principal role for pneumococcal vaccination—the subject of the Question—lies with GPs. Take-up of the PPV for those aged over 65 is 70%; for those aged over 75, it is 80%. For young children, the rate is more than 95%.

Lord Walton of Detchant (CB): My Lords, one of the great advantages of the pneumococcal vaccination programme is that it is widely believed that a single injection gives lifelong protection—or at least substantially lifelong protection—against pneumococcal pneumonia and pneumococcal meningitis. Is the Minister satisfied that that is still sufficient?

Lord Prior of Brampton: My Lords, the noble Lord knows far more about this than I do. I can tell him that the PCV 13 vaccination for young children provides long-term protection and, as importantly, prevents the disease spreading. The PPV—the polysaccharide vaccination provided to older people—does not have the longevity of PCV 13, but it provides wider protection against 23 of the serotypes, rather than 13. It does not provide the length of protection that PCV 13 does, but it still provides some protection.



3.02 pm

Asked by Baroness King of Bow

To ask Her Majesty’s Government what assessment they have made of the drop in the number of children being placed for adoption.

The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con): My Lords, adoption decisions have fallen by around 50% since September 2013 following two court judgments that have been misinterpreted as having changed the legal test for adoption. The Prime Minister has been clear about his commitment to ensuring that adoption should be pursued where it is in the child’s best interests. The Government are actively considering whether legislative change is necessary to ensure this.

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Baroness King of Bow (Lab): I thank the Minister for the clarity of that reply. In the vast majority of cases where children are not being placed for adoption, they are instead being given special guardianship orders or placed in long-term foster care. The problem is that both those arrangements have dramatically higher breakdown rates than adoption. Given these facts, does the Minister share my sadness at hearing what a social worker told me last week? I have heard it from very many other social workers as well. The social worker told me not to advise a white couple to apply for adoption, because:

“In the last year we’ve stopped putting forward white children without severe complex needs”,

for adoption. The DfE warned that it would not hesitate to take action if placement orders fell. How and when will the DfE decide that the time for hesitation is over?

Lord Nash: I share the noble Baroness’s concern about this. I know that it is of particular relevance to her own experience. We have announced that we are making changes to the regulations governing how special guardianships are assessed to make it more robust. Our review of special guardianships has shown compelling evidence that they are not always assessed in a way that puts children’s interests first. We plan to publish the wider findings of that review before Christmas. As I said, the Prime Minister announced that we are considering legislative change to ensure that decisions are always made in children’s best interests, and to take proper account of the timeliness, quality and stability of placements. We will publish our thoughts in the new year and we will engage widely with the sector about this.

Lord Storey (LD): It is vital that all children are in a loving and stable home. Data released from the Minister’s own department, the DfE, show that 6,000 children went missing from care in the year to March 2015. What is he going to do about that?

Lord Nash: This is an area that we have great concern about and we are trying to increase our data on it from local authorities. I will be happy to write to the noble Lord in much more detail.

Lord Hylton (CB): My Lords, we can all agree that the most careful checks need to be made before a child is placed for adoption. However, there have been long delays in many cases. What are the Government doing to ensure that those delays are kept to the absolute minimum?

Lord Nash: The Children and Families Act was very much about speeding up the process. The number of placements made within a year has almost doubled and the time children wait for adoption has fallen by several months. I have already alluded to the issues we have in the immediate short term and the possible plans for legislative change to remedy the situation.

The Lord Bishop of St Albans: My Lords, just last night in this Chamber, noble Lords discussed amendments to the Welfare Reform and Work Bill which sought to exclude kinship carers and adoptive parents from the two-child limit in tax credits. Given the worrying decline

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in the number of adoptions, this seems an eminently sensible proposal. If things go through as they are at the moment, this would act as a significant financial disincentive for some families to take on extra children as kinship carers or adoptive parents. This House was told last night that that is not being considered in the present Bill, but no reasons were given. Will the Minister explain why this very helpful suggestion is not being taken up?

Lord Nash: I know this was debated last night, but it is way off my brief. I am sure that Ministers will listen to what was said.

Baroness Lister of Burtersett (Lab): My Lords, following up on the question asked by the right reverend Prelate, what is the Government’s assessment of the impact of the Bill to which he was referring on the number of children placed for adoption?

Lord Nash: I have just said that this was discussed in some detail last night.

Lord Geddes (Con): My Lords, I may misheard my noble friend, but I thought that in his Answer he referred to misinterpretation of court judgments. Misinterpreted by whom?

Lord Nash: We believe this may have been misinterpreted by some social workers with, I am sure, the best interests of children in mind. The president of the Family Division has clarified the meaning, particularly in Re B-S and in Re R, where he made it absolutely clear that the law on adoption had not changed. However, it seems that these decisions have sometimes been misinterpreted as raising the legal test for adoption so that adoption should not be pursued unless there is no other option. We are particularly concerned about this.

Lord Watson of Invergowrie (Lab): My Lords, the Minister will be aware that the greatest shortfall in adoptions is among harder-to-place children. What assurances can he give to people willing to adopt children in that category that they will have full support to enable the adoptions to become permanent?

Lord Nash: We have made £30 million available for the central agency fees, specifically for this category of children. The regional adoption agencies, which the noble Lord will know about because we debated them, will give these harder-to-place children immediate access to a larger pool of potential adopters.

Baroness Afshar (CB): My Lords, is the Minister aware that because of the restrictions, there is an increase in adopting children abroad on the part of many families who wish to adopt but are perhaps considered too old or do not pass various criteria in this country? Those people would be very good parents for children in this country but cannot adopt them.

Lord Nash: I am aware of the point the noble Baroness makes. We are determined to ensure that those parents have the opportunity to adopt in this country.

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Baroness Farrington of Ribbleton (Lab): My Lords, will the Minister do me the following courtesy? I am sure he will feel that he needs to add to the answer he gave to the right reverend Prelate. Will he please send copies of that answer to me and other noble Lords with an interest in this area? Merely to say that it is not within his brief does not fully answer the question.

Lord Nash: I will certainly do as the noble Baroness suggests.

Business: Advice Services


3.10 pm

Asked by Baroness Burt of Solihull

To ask Her Majesty’s Government what assessment they have made of the impact of the closure of the Business Growth Service, including the Manufacturing Advisory Service, on economic growth and access to advice for businesses.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills and Department for Culture, Media and Sport (Baroness Neville-Rolfe) (Con): My Lords, we do not expect closure of the Business Growth Service to have an impact on economic growth. The most important way we can help small businesses is to continue to secure a strong growing economy by cutting red tape, extending small business rate relief and dealing with late payment. In future, businesses will be able to go to their local growth hub, which will co-ordinate local, national, public and private sector support.

Baroness Burt of Solihull (LD): My Lords, the Business Growth Service has supported more than 28,000 businesses and since 2012 has added £4.8 billion GVA and 100,000 jobs. Manufacturing industry, which began a welcome rejuvenation under the last Government, is reeling from the sudden decision to close these services. Given how fundamental a part of the industrial strategy this service was, will the Minister tell the House how the Government intend to support the industrial strategy and companies ambitious to grow in the future?

Baroness Neville-Rolfe: My Lords, the Chancellor made it clear in his Autumn Statement that businesses need an active and sustained industrial strategy. We continue to work closely with different industry sectors—I do so with electronics and professional services. A whole series of announcements were made in relation to manufacturing to provide more support for aerospace, automotive, defence and transport.

Lord Hunt of Kings Heath (Lab): My Lords, the noble Baroness mentioned SMEs. Is she aware of the concern that the central government procurement contracts are actually squeezing SMEs out from winning contracts? Is she prepared to look at government procurement policy again?

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Baroness Neville-Rolfe: I am concerned to hear what the noble Lord says because we put a lot of work into improving the procurement process for small businesses. I will certainly write to him with the details, including on the payment periods, which have been severely reduced.

Baroness Hooper (Con): Will my noble friend tell us how the Government’s future plans intend to help small and medium-sized businesses increase their exports?

Baroness Neville-Rolfe: I am glad that my noble friend mentioned exports because a huge export drive is part of the BIS agenda. UKTI provides tailored help for small businesses on suitable markets, export opportunities and, of course, finance. Having been involved in export in a prior life, I know how very helpful that work is to business.

Baroness Wall of New Barnet (Lab): I am sure the noble Baroness will be aware that the SMEs mentioned by the two previous speakers use the Manufacturing Advisory Service extensively. Is she receiving any information about the effect that not having that facility is having on the way they conduct start-ups and advance their businesses?

Baroness Neville-Rolfe: My Lords, the Manufacturing Advisory Service is, indeed, part of the Business Growth Service. As I have explained, we are doing things differently. In future, businesses will be able to get their support from local growth hubs. We have a strong menu of support through the British Business Bank, start-up loans and in other ways, but the main way to secure success for small businesses is to have the right framework to progress profitable activities. Of course, that means growth, a lesser burden of red tape and of rates and so on.

Lord Stoneham of Droxford (LD): My Lords, three years ago the noble Lord, Lord Heseltine, in his report No Stone Unturned in Pursuit of Growth, remarked on the inconsistency of support for small businesses through government policy. With this change, are the Government still on the side of inconsistency, and will they act on his other recommendation to strengthen, through extra resources, local chambers of commerce and LEPs to provide greater support and consistency to allow small businesses to grow?

Baroness Neville-Rolfe: I am delighted that the noble Lord mentioned LEPs because, of course, LEPs bring together chambers of commerce, business interests and local authorities. The growth hubs that I mentioned are indeed part of that LEP network, which already has 31 hubs and will have 39 by next April.

Lord Flight (Con): My Lords, does the Minister agree that the Government’s Enterprise Investment Scheme has been a tremendous help to small businesses in providing risk equity capital? Is she aware that the requirements forced on the UK by the EU Competition Commissioner, in order to meet the state aid requirements, are going to severely reduce the likely flows of risk equity money to SMEs under the EIS?

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Baroness Neville-Rolfe: My Lords, I, too, am a huge fan of the EIS and of good tax support for small businesses. I am also a huge fan of competition so, although I am not entirely aware of the detail of what the Competition Commissioner said, it is important that we support competition right across the EU.

Lord Campbell-Savours (Lab): My Lords, the Minister will know that many small businesses were actually built on the back of invoice discounting and factoring. What are the Government doing to push that kind of funding?

Baroness Neville-Rolfe: The noble Lord makes a good point. One of the reasons that is necessary is because the bigger companies do not pay the smaller companies quickly enough. That is why, on a cross-party basis, we have been trying to do a lot of things about late payment, and there is a whole series of measures in the pipeline, which I believe are overdue.

Baroness Coussins (CB): My Lords, is the Minister aware of research conducted by Cardiff University’s Business School, which estimates that UK businesses are missing out on up to £48 billion every year in lost contracts because of a lack of language skills in the workforce, which prevents them being able to bid for contracts or even to understand the tender documents, which are by no means always written in English?

Baroness Neville-Rolfe: I was not aware of that report but it sounds a very valuable one. Having operated internationally, I am a huge fan of languages, both in the curriculum and being really useful when you are trying to export; getting my own children to speak foreign languages has been a problem.

Lord Cotter (LD): My Lords, the Minister has raised the issue of late payment. There is a tremendous problem within the construction industry, as she may know, and a lot of people are getting together to put the facts forward. Will she address this issue in the new year? Retention of payments, payments after 120 days when they should be within 30 days—these are very live issues, which I and others will be addressing in the new year, and I hope she will start to address them now.

Baroness Neville-Rolfe: Indeed, retentions are an issue in the construction industry. That is why we have set up a review, partly as a result of discussion on the Enterprise Bill, to bring the question of late payment in construction into the piece, which is already tackling business generally and insurance.

Scotland Bill

Bill Main Page

Committee (1st Day)

3.19 pm

Relevant documents: 6th Report from the Constitution Committee, 15th Report from the Delegated Powers Committee

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Clause 1: Permanence of the Scottish Parliament and Scottish Government

Amendment 1

Moved by Lord Norton of Louth

1: Clause 1, page 1, leave out lines 9 and 10

Lord Norton of Louth (Con): My Lords, I shall speak also to Amendment 3, which is also in my name. The purpose of the amendments is to leave out subsections (1) and (2) of the proposed new section. I have tabled them to enable my noble friend the Minister to justify the inclusion of these subsections. I am aware that they derive from the recommendations of the Smith commission. Paragraph 21 of the report states:

“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”.

However, there is nothing in that report to justify the recommendation. In his foreword the noble Lord, Lord Smith of Kelvin, said:

“The Scottish Parliament will be made permanent in UK legislation”—

but that exhausts references to the proposal.

During Second Reading, I touched upon my concerns with both subsections. One concern I raised in response to an intervention by the noble and learned Lord, Lord Hope of Craighead. It was that the recommendation falls outside the terms of reference of the Smith commission. The commission was established to make recommendations for further devolution of powers to the Scottish Parliament. These subsections do not provide for the further devolution of powers. We are in something of a double bind. The Smith commission did not produce a reasoned report but, rather, a list of recommendations, and the Government committed themselves in advance to implementing its recommendations. The justification for the provisions of the Bill is thus generic: that they deliver on the commission’s recommendations. What we lack is a clear exposition of the reasoning behind each provision. The Government, in effect, offered the commission a blank cheque and I do not think that it is our task to cash it without questioning the transaction.

The other concern I raised was that the provisions fly in the face of the Government’s own guidance on making legislation. I quoted the most recent edition of the Cabinet Office’s Guide to Making Legislation, published in July, which stated at paragraph 10.9:

“Finally, when writing instructions … to keep in mind the general rule that a bill should only contain legislative propositions. These are propositions that change the law—they bring about”,

a change in the law,

“that would not exist apart from the bill”.

The guide goes on to record:

“It can sometimes be tempting to ask the drafter to prepare a provision that is not intended to change the law but is instead designed to serve some political purpose or to explain or emphasise an existing law”.

I have not sought to omit new subsection (3) because that does contain a legislative proposition, albeit one that merits amendment.

The wording of Clause 1 was discussed in Committee in the other place and it was amended on Report. However, the discussions took as given that there should be a provision stipulating that the Scottish Parliament

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and Government were permanent. The debate itself was somewhat disjointed, given that the amendments were considered with others. There was no sustained debate focused on subsections (1) and (2).

The Scottish Parliament was created under Section 1(1) of the Scotland Act, and there is nothing in that Act that limits its existence. What then do new subsections (1) and (2) add to the statute book? What is the relationship between these subsections and subsection (3)? New subsection (3) establishes that the Parliament and Government of Scotland,

“are not to be abolished except on the basis of a … referendum”,

in Scotland. It could be argued that this subsection qualifies subsections (1) and (2), given that it envisages circumstances under which the Parliament and Government cease to be permanent. However, it may also be argued that they confuse rather than clarify.

The Constitution Committee noted in its report on the draft clauses that Clause 1 creates,

“the potential for misunderstanding or conflict over the legal status of the Scottish Parliament which may result in legal friction in the future”.

It went on to state:

“If there are different interpretations as to the status of the Scottish Parliament in its present constitutional configuration then it is not implausible that Clause 1 could be interpreted by certain judges to be a form of entrenchment that could not then be repealed by Westminster legislation without the consent either of the Scottish Parliament or the Scottish people voting in a referendum”.

The committee returns to the point in its report on the Bill, drawing attention to the problem with the revised wording, which, it says in paragraph 36, risks,

“introducing uncertainty concerning the absolute nature of parliamentary sovereignty where there should be none”.

The problem is exacerbated by the removal of the word “recognised”.

New Section 63A(1) states that the Parliament and Government are permanent, and subsection (2) may be read as affirming that this section is Parliament’s commitment to that. The political reality is that the Scottish Parliament is permanent—that is not in doubt. Why then introduce these new subsections? They raise more questions than they answer. If they are to remain in the Bill, it would be prudent to accept Amendment 9, tabled by my noble friend Lord Forsyth of Drumlean, which would add:

“Nothing in this section alters the sovereignty of the United Kingdom Parliament”.

I can anticipate some of the arguments that may be deployed by the Minister against that amendment, but those arguments could be utilised in respect of new subsections (1) and (2). I invite my noble friend the Minister to provide the Government’s substantive thinking behind new subsections (1) and (2) and thus get it on the record, I beg to move.

The Lord Speaker (Baroness D'Souza): My Lords, if this amendment is agreed to, I cannot call Amendment 2 by reason of pre-emption.

Lord McCluskey (CB): My Lords, I had not expected to be on my feet just at this moment, but I will speak to Amendments 4 and 5. Amendment 4 asks that the word “only” should be inserted into line 11, so that the new provision would read:

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“The only purpose of this section is … to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government”.

The first question I have to ask the Minister is: if this is not the only purpose of the section, what other purpose or purposes does the section have? I do not see any value in having the words, “The purpose”, unless we make it clear that this is the only purpose.

My Amendment 5 would remove the words,

“with due regard to the other provisions of this Act”.

As I understand statutory interpretation, when a court or other body is called upon to understand an Act of Parliament, it may well be necessary, in the case of any kind of ambiguity, to look at any other provisions of the Act which bear upon the same matter. There is a duty in law and in custom for courts and others to have due regard to the other provisions of the Act, so I do not see what purpose this provision serves here. My own general approach is that the shorter legislation is, the better. Legislation is often too wordy and too confused. If the words are not necessary, they should not be there. That is the simple basis on which I speak to both the amendments standing in my name.

Lord Cormack (Con): My Lords, I will speak briefly to Amendment 7, which stands in my name, but before doing so I agree with what the noble and learned Lord, Lord McCluskey, just said about wordy legislation and endorse entirely what my noble friend Lord Norton of Louth said in his crisp, succinct introduction of his own two amendments. This is a very unsatisfactory Bill, brought about by extremely unsatisfactory circumstances. If we in your Lordships’ House are going to try to improve a bad Bill—as is for ever our task, and one which was never more needed than in the case of this Bill—we have to address certain very important aspects of it.

I concentrated my amendment on the whole subject of parliamentary sovereignty. Although the Scottish Parliament came about because of the wish of the Scottish people in a referendum, nevertheless it was created by Act of Parliament. If it is to be abolished, that should be done by Act of Parliament, too. I neither forecast nor advocate its abolition but if we are to have such a provision in this Bill—I doubt whether it is needed, and my noble friend Lord Norton of Louth made that position plain in his speech—it should be a parliamentary provision. That is why I suggest that it should be on the basis of a two-thirds majority in a vote of the House of Commons, in which 75% of the Members elected by Scottish constituencies vote for abolition. That provides as strong a parliamentary safeguard as can be envisaged. It is infinitely to be preferred to the referendum route.

3.30 pm

Of course, that does not exclude the possibility of a consultative or confirmatory referendum. I am glad to see my noble friend Lord Norton, who is such a great constitutional expert in these matters, nod at that point. This Parliament in Scotland is the creation of the Parliament of the United Kingdom and it is the Parliament of the United Kingdom that should make the decision, with proper safeguards, if the prospect of abolition should ever appear. None of us can foresee

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the circumstances in 10, 20 or 30 years’ time, but we can say that we have a parliamentary duty and if this Scotland Bill is to become a Scotland Act, it should be as good and as protective of the Parliament to which we all belong as we can make it. I know that I cannot move my amendment at this stage. I leave my remarks there and hope that the Minister will deal with this subject adequately in his response. If not, I hope your Lordships’ House will come back to it on Report.

Lord Hope of Craighead (CB): My Lords, it is probably right that I should now speak to Amendment 6, as set out on the Marshalled List, which assumes that subsections (1) and (2) in the new clause remain as printed in the Bill, and then seeks to alter the wording—and, I respectfully suggest, improve it—of subsection (3).

I should explain the origin of the wording of the amendment. I have done my best to keep the Minister informed about my thinking on this matter. As with other amendments on the Marshalled List in my name, the source from which I drew is a series of amendments proposed by the Scottish Government in June, in advance of Committee stage in the House of Commons. However, I tabled these amendments entirely on my own initiative. I am not instructed by anybody and did not table them on behalf of anybody other than me—although they have the support of the noble Lord, Lord Norton of Louth, who may say a word on some of them in due course. It simply seemed to me on reading them, without any political background whatever, that they had some merit in view of their wording and therefore should be discussed. Some of those amendments, which I will come to later, were before the other House but were withdrawn or not moved and therefore have never been discussed. That seemed an unfortunate state of affairs if one is seeking to improve the Bill. This amendment was I think tabled on the first day of Committee in the other place and was negatived on a Division. Nevertheless, it is open to this House to look at the wording again and that is what I seek to do.

Before I say more about the wording itself, perhaps I can respond to the point made by the noble Lord, Lord Cormack, about the relationship between the Scottish Parliament and the Parliament of the United Kingdom. The report of the Constitution Committee, chaired expertly by the noble Lord, Lord Lang of Monkton, referred to a passage in a judgment that I wrote in the Supreme Court in a case called AXA General Insurance Ltd v the Lord Advocate in 2011. In the passage referred to, I sought to describe what I understood to be the position between Scotland and the Parliament at Westminster. I made the point that the Scotland Act 1998 provides that the,

“Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature”,

with a,

“democratic mandate to make laws for the people of Scotland”.

I made the point that it does not, and was not intended to, “enjoy the sovereignty” this Parliament has and went on to say that,

“the sovereignty of the Crown in Parliament … is the bedrock of the British constitution”,


“remains with the United Kingdom Parliament”.

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Nothing that I may say in the course of the debate is intended to detract in any way from those propositions. I believe absolutely in the crucial position that this Parliament enjoys. It is well understood that the Scottish Parliament does not have sovereignty in that sense, and that is perfectly clear because its legislation can be reviewed by, among others, the Supreme Court to see that it falls within the parameters set for the powers of the legislature under the Scotland Act. That is all by way of background.

In considering the amendments proposed by the noble Lord, Lord Norton of Louth, one has to recognise that the Smith commission, which discussed the matter in layman’s terms, said that the position of the Scottish Parliament should be recognised by legislation. Given that that proposition was made and accepted by all the parties to the discussions before Smith, it seems difficult to avoid having at least a clause that recognises the permanence of the Scottish Parliament. So it is against that background that I do not quarrel with subsections (1) and (2) but direct my attention to the wording of subsection (3), with the aim of improving it to clarify the position.

The amendment would insert a new subsection, which states:

“Subsection (1) may only be repealed if … the Scottish Parliament has consented to the proposed repeal”.

That is there simply to recognise that the repeal we are talking about is a repeal of the provisions establishing the Scottish Parliament in the Scotland Act. There seems merit in the proposition that, if that Parliament is to be abolished, it should at least be in a position to express a view as to whether that is desirable. I am not seeking to undermine in any way the sovereignty of this Parliament; I am simply looking at the relationship between the Parliament created by the Scotland Act and a measure that would seek to abolish it. Once it has been created and when it is still in existence, it would seem rather odd that it should be unable to express a view on whether that should or should not happen.

The other part of the amendment simply looks at the proposition that there should be a referendum, which the Government have accepted should be part of the package to support the remaining provisions in Clause 1. The amendment would clarify what the subject matter of the referendum is to be and state in terms that there would have to be,

“a majority of those voting at the referendum”,

before it had the effect suggested by the clause. The condition is that a referendum has been held in Scotland on the proposed repeal, and that a majority of those voting in the referendum have consented to it. It may be that that is implied by the wording, but it seemed to me that in the interests of clarity, it would be better to make the matter express, because what we are contemplating is such a major political event that the exact condition that would give rise to authorising the proposed repeal needs to be put beyond doubt.

I shall make submissions later in support of other amendments, but those are the reasons behind this amendment and the background to why I tabled it.

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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

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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.

3.45 pm

I hope that the Minister will find it possible to accept the amendments that my noble friend Lord Norton has put forward, if for no other reason than that it will remove the obligation on me to move Amendment 2, which is based on the assumption that the Government will indeed hold to this course, which I believe undermines the sovereignty of Parliament. The noble Lord speaking for the official Opposition shakes his head in disagreement from a sedentary position. If it does not undermine the sovereignty of Parliament—and I suspect that that is what we will hear from the Front Bench—what is the point of having it? This is just legislative graffiti, then; it is stuff written in the Bill with the purpose of giving the impression that the nationalists have won some great victory. Well, graffiti can be very dangerous; it can be very difficult to remove, especially if people believe that it carries words like “permanent” associated with it.

What we see in the Bill, with the inclusion of the words,

“The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements”,

is people saying things in legislation that are simply not true. No Parliament can bind its successor. Why are they saying this? In order to create an impression that the devolved parliament—I think it was the late Enoch Powell who said that power devolved is power retained—is not a devolved parliament.

I spent a great deal of energy, as did many other people in this House, arguing during the Scottish referendum campaign that we should remain part of the UK and continue to have a sovereign UK Parliament —and 55% of the voters voted for that. What on earth are the Government doing undermining that sovereign United Kingdom Parliament—or at least appearing to give the impression of doing so in order to appease the forces of nationalism?

This is a very dangerous thing indeed. With the Scottish Parliament and the Scottish Government, which used to be called the Scottish Executive, step by step, with grandmother’s footsteps, we create the impression of a sovereign independent parliament and play straight into the hands of those nationalists who do not accept the result of the referendum and still seek to break up the UK. We would be very wise to listen to the concerns that have been expressed by the Constitution Committee of this House and to the wise words of my noble friend Lord Norton of Louth, who is the nearest thing that we have on our side of the House to a constitutional expert, and who has great

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distinction and knowledge. I very much hope that if the Minister is not able to accept these amendments, he will at least take this clause away and rethink it, because it is being used as a kind of political statement and, in doing so, it undermines the quality of our legislation.

In my day as a Minister, you would never have got away with this; you would never have got it past the parliamentary draftsman. What has happened to the parliamentary draftsman’s office that it allows this sort of stuff to be written in legislation? What has happened to the machinery of government, of L Committee and others, which used to operate in a way to ensure the integrity of our legislation?

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

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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.

Lord Maxton (Lab): The fact is that we have a written constitution; we do not have a codified constitution.

The Lord Bishop of Chester: I am not sure that I entirely agree with the point, but I will not argue as it would take me down the highways and byways in a way that would not be helpful. I will end on the following point—and I speak as someone who loves Scotland and who will live there in retirement and no doubt will be buried there. When we talk about Scotland, often a slightly grudging spirit comes into our discussions, which is a great mistake. At the end of the day, this provision is a valuable one.

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

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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)

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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.

4 pm

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 (Con): My Lords, I support Amendment 1. We have heard a lot of intricate and technical arguments and I do not intend to get involved in them.

I listened to the noble and learned Lord, Lord Wallace of Tankerness. He mentioned Section 1 of the Scotland Act. I remember that Act well because I was leading for the Opposition in the other place at that time. I think we all accepted that the Scottish people had asked for devolution, that there would be a Scottish Parliament and that, for all we knew, it would be there for a long time if not for ever. But the word “permanent” was never introduced into the legislation, partly, I suspect, because, as my noble friend Lord Forsyth has said, the draftsmen would not have allowed it, but also because we all accepted that to enter it into the legislation would set a whole lot of other constitutional hares running. That is really my purpose in rising to talk merely about Amendment 1.

What we are looking at here is part of the problem that we have suffered from constitutionally in the country over the past 20 years: we keep on amending the constitution piecemeal, unintentionally, and without regard to the possible consequences in other areas. When I look at this word “permanent”, I see an attempt to say that this Parliament can bind other parliaments by saying that the Scottish Parliament is there for ever.

I said in my speech at Second Reading that, as a young law student in Scotland in the 1960s, I was for ever being taught by various professors about the entrenchment of the Act of Union. Section 1 of the Union with England Act states:

“That the Two Kingdoms of Scotland and England shall … hereof and forever after be United into One Kingdom by the Name of Great Britain”.

I was told that that was entrenched and, parliamentary sovereignty aside, we could accept that would never change. But we went into the Scottish referendum last year on the understanding that, if there had been a yes vote, that Act of Union would have been changed. It would not have been for ever because the Scottish people had decided unilaterally that they did not want it to be for ever. What we are looking at here is very important.

The same applies to this clause. If we believe that permanence is permanence, we should say that it is part of our constitution. Or, we should say that the sovereignty of Parliament is supreme, which is what I have always believed, and that one Parliament cannot bind another. If that is the case, we should not indulge in language that dishonestly suggests that we do not believe that to be true. I am not just talking about this Scotland Bill. If we go down the road of saying that whenever we introduce the word “permanent” into legislation, it will bind subsequent Parliaments for ever, we have substantially changed the constitution of this country, and we would have done that without thought, debate or proper consideration. I do not believe that the clause is necessary.

I did not like devolution. I did not like Section 1 of the Scotland Act. I opposed it, but once it was passed I accepted that it was there and that it would always be there. However, I would not have accepted the word “permanent” being introduced if it suggested that the

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United Kingdom Parliament was anything less than sovereign. We must think very carefully about this when we look at the Bill. The right reverend Prelate said that we should not get rid of this clause because that would have all sorts of other consequences. But if we leave this clause in, we are giving permission for future Parliaments to create permanence in other areas. I may be too old, possibly, to suffer the consequences of that, but I hope my children and grandchildren will not find that we have abandoned the sovereignty of Parliament just in the cause of getting this Bill through.

Lord Hope of Craighead: I want to put to the noble Marquess a point that I mentioned to the noble Lord, Lord Forsyth. The problem is created by paragraph 21 of the heads of agreement, which states in terms:

“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”.

There may be an answer to the point that he raises. The word “permanent” is lay man’s language. After all, this was drafted by people sitting around without consulting lawyers at the time. It could be regarded as lay man’s language and there may be some other way of taking away the word “permanent” but nevertheless fitting it into the UK context. The previous paragraph, paragraph 20, says,

“in the context of Scotland remaining within the UK”.

I am not suggesting a form of words, but I wonder whether the noble Marquess would accept that the Government have a problem in having to give effect to paragraph 21. Maybe there is a way of softening the word “permanent” to fit it in with the United Kingdom and the well-understood constitutional principles. Perhaps we are being too attached to the word “permanent”, which lay men use and was perhaps not very cleverly chosen.

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

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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.

Lord Mackay of Drumadoon (CB): My Lords, perhaps I may do my best to introduce a little reality to what has happened in this case because, to quote the well-known words, I was there. I was in your Lordships’ House on 21 July 1998 during a debate on an amendment which I had moved concerning Clause 2 of the then Scotland Bill of that year. I have before me a helpful summary of the history of that event, which may assist noble Lords in deciding the way forward in a real and understandable way.

In one sense, Clause 2 refers to what happened that night when, in the course of appearing in the case, Lord Sewel made a statement which I have had a brief opportunity to look at in Hansard. He said,

“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.—[

Official Report

, 21/7/98; col. 791.]

That means that the facts of what happened were as follows. I had moved an amendment that did not refer to the convention which would be normally effective. As we all know, the Bill proceeded and, of course, became law. I am informed by the report I have in front of me that,

“Since the establishment of the Scottish Parliament, there appear to have been no significant problems with the operation of the convention. It applies when UK legislation makes provision specifically designed for a devolved purpose”,

and also when UK legislation,

“would alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish”,

Government. While some years later we can speculate about what people in this House were thinking in July of 1998, one of the phrases that causes some irritation and annoyance, and which there is clearly a wish to get rid of, is the term, “normally legislate”. It is quite obvious that that was not discussed in any detail that night.

It may also be of interest to noble Lords to know that the convention has evolved over the years and has been agreed through memoranda of understanding and by the House of Commons Procedure Committee. However, the clause refers to only some of the circumstances in which there is in practice the need for a legislative consent Motion. There is further reference to a document entitled Devolution Guidance Note 10, which was used to address some of these issues. What this proves, I would submit, is that the terms that are causing offence were not the result of any detailed debate between the parties to the proceedings before the House, and I trust that this will be of some assistance to noble Lords.

Lord Maxton: My Lords, I shall be brief. I spent 17 years in opposition along the corridor, and there are present at least four or five former Ministers in the Government at the time who were always telling me,

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whenever I moved an amendment to a Bill, that we cannot bind a future Parliament with laws we pass in this Parliament. That is a basic rule. In fact I was even taught that in constitutional history at Oxford in the 1950s. You cannot bind one Government.

4.15 pm

I have two other points. The first is to say to the right reverend Prelate the Bishop of Chester that he is wrong. Only one person at the opening of the Scottish Parliament said that it was reconvening the Parliament of 1707. That, of course, was Mrs Winifred Ewing, who was a member of the SNP. No one else believed it and no one else said it at the time because they knew that it was wrong. This was a new Parliament and was not a reconvening of the old Parliament of Scotland. It was a new and totally separate Parliament from what had been there before.

Secondly, let me just say to the noble Lord, Lord Cormack, on the 75% of members of Parliament, that there was a time when we would have got the 75% of Scottish Members down the corridor because they are all SNP, and the SNP at one time, let us remember, was opposed to devolution. The party has been opposed to devolution in its past—and not that long ago either. It refused to be part of the Scottish convention, of which I was a member, as was, I think, the noble and learned Lord, Lord Wallace. We both remember that the SNP refused to be part of that because it was opposed to devolution, as did the Tory party because it was opposed to devolution, too, but that is a different matter. The fact is we cannot bind, so I am giving some support to the amendments that have been tabled. Politically, when I find myself on the same side as the noble Lords, Lord Norton of Louth and Lord Forsyth of Drumlean, I really am in trouble.

Lord McCluskey: In the light of the debate so far, I should like to add something to what I said before. I remind the House that the purpose of legislation is to effect a change in the law—to state the law. Subsection (1) is a statement:

“The Scottish Parliament and the Scottish Government are a permanent part”.

Whether or not that changes the law, I do not know. Given the arguments about sovereignty, it may state the law at present but it cannot change it a week next Tuesday because, as my friend Sir Gerald Gordon, an expert lawyer in Scotland, said, there is no written constitution in Scotland in the United Kingdom, but it can be written in one sentence, and that is: “There shall be a Parliament at Westminster, and it can do what it likes”. Another version is: “There shall be a House of Commons at Westminster, and it can do what it likes”. Apparently, the Government do not hold to that view because, as the noble Lord, Lord Forsyth, has pointed out, it cannot do what it likes and must do what the Smith commission has decided it will have to do.

The point I want to make is the important one that subsection (1) makes a statement, although I do know its legal effect at all. But when we look at subsection (2), where I want to add the word “only”, it states:

“The purpose”—

which probably means the only purpose—

“of this section is … to signify the commitment of the”,

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UK Parliament et cetera to something or other. In other words, if you interpret subsection (1) by looking at subsection (2), which you have to do, of course, you find that its only purpose—or “the” purpose—is simply to make a statement of fact. I do not see how these things change the law.

The noble Lord, Lord Forsyth, made remarks about the parliamentary draftsmen. They have my deep sympathy because they were given an appalling job to do, given the terms of the report and the whole background to it, including matters discussed on Second Reading. If this is the best they can do, maybe we can try to do better, but we are writing on water here.

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

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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

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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.

Lord Purvis of Tweed: Does the noble Lord not agree that there is now considerable case law in Scotland which has looked at the competences of the Scottish Parliament and the reach of legislation from this place? So under the existing arrangements, it is perfectly in order for UK legislation to be challenged on the extent of its interaction with devolved legislation. We currently have that practice and it does not seem to have undermined our constitution irrevocably.

Lord Lang of Monkton: That does not surprise me, because I have always taken the view that, ever since we embarked—for all kinds of reasons I will not go into in this debate—on an ill-conceived and unbalanced form of devolution, we were on the slippery slope and sliding towards separation and independence unless we were very careful. As I have said many times, this Bill carries us one step nearer to that.

In his wind-up speech at Second Reading, my noble friend Lord Dunlop said:

“The sovereignty of Parliament remains”.—[Official Report, 24/11/15; col. 667.]

That is a commendable, clear, concise statement. We also know, and have reminded ourselves today, that no Parliament can bind its successor. But my noble friend also said of this clause that it puts the permanence of the Scottish Parliament and Scottish Government, “beyond all doubt”. In conceding the referendum point on Report in the other place, the Secretary of State for Scotland said that it makes clear,

“beyond question that the Scottish Parliament and the Scottish Government are permanent institutions”.—[

Official Report

, Commons, 9/11/15; col. 57.]

By putting things beyond doubt, he raises doubts in all of us. The Government’s arguments are in deadlock: they hit each other head-on. That is why, at Second Reading and now, so many noble Lords have tabled amendments and why the House badly needs reassurance. I very much hope that the Minister will be able to give it to us when he winds up the debate.

Lord Sanderson of Bowden (Con): My Lords, I am one of the few non-lawyers who are even putting their foot into this particular hole. I stand to be corrected by the Front Bench, but Clause 2, which has been referred to, makes perfect sense if the United Kingdom Parliament remains sovereign and can legally legislate on anything, including devolved matters. But that would contradict Clause 1 if the purpose of that clause is to entrench all provisions that are unalterable. I want our Front Bench to answer that question.

Lord Purvis of Tweed: I do not agree with the mood of the noble Lord, Lord Lang of Monkton, because I do not share his views on Amendment 1. I am happy that the Government inserted further clauses into the Bill. I am pleased that that was the result of cross-party consideration and that the Government responded to the Smith commission—in a difficult context—and

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put into proposals what I think most people in Scotland now understand: that they have two Parliaments. This is not an easy thing to do and parliamentary draftsmen have a difficult task because we now operate in a situation where we have more than one sphere of power over primary legislation. That poses considerable difficulties for some because they believe that one should be primary and one subsidiary to it. So far as primary legislation is concerned, most people in Scotland consider themselves as having two legislatures. It is even harder because we do not have a written constitution. In the absence of one, we have to rely on other measures to see how we entrench parts of our governance.

It is not the case that this has simply been dreamt up over the last couple of months, as some noble Lords have indicated. Nor it is the case that it is in response to the referendum. Nor is it the case that it is only to do with political expediency. Some of us have believed for a considerable time that it is right to reflect in statute the permanence of the Scottish Parliament in the context of a new and evolving structure of governance in the United Kingdom. I absolutely believe that that is best in a codified federal relationship, which I hope would be the result of a constitutional convention—others have a different view. However, in the absence of that, I believe that we then have to look at what has been a developing process in the United Kingdom.

4.30 pm

I think that it is broadly unacceptable to say that we still operate under the 19th century Diceyan view of this Parliament. That no longer represents the reality of this place’s role in our governance arrangements and is no longer relevant in reflecting the view of the sovereignty of the people. If this was the case and the Diceyan view was so strong, I have been wondering during our hour or so of discussion why we are having a European Union referendum at all. Why does not Parliament simply decide what our future relationship with the European Union will be? However, there is a recognition that the sovereignty of the people is now supreme. Perhaps that has come about because of the European Union. We were all subjects before the advent of the Maastricht treaty. Indeed, some have had considerable difficulty recognising the fact that under that treaty we are citizens and not purely subjects.

Where else do we look? My noble and learned friend Lord Wallace of Tankerness referred to the Statute of Westminster 1931, which ceded powers from this Parliament. It is inconceivable that we would simply now believe that the authority of this place over the dominions can somehow be reconstituted. Why is that the case? It is perfectly clear that we have case law for this. The noble and learned Lord, Lord Hope, referred to one of his judgments when he sat on the Bench. I refer to another one which I referred to in the devo plus report that I authored in 2012, long before the referendum. The noble and learned Lord, Lord Hope, quoted from paragraph 102 of the judgment of the noble and learned Lord, Lord Steyn, in Jackson v the Attorney-General relating to a challenge to the Hunting Act 2004. The noble and learned Lord, Lord Hope, said:

“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless,

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the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created the principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism”.

I think that is a very fair judgment and observation to make. The noble and learned Lord, Lord Hope, continued in relation to paragraph 104 of the same judgment:

“I start where my learned friend Lord Steyn has just ended. Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified”.

Therefore, the question is: how are we qualifying? What is the way forward, taking into consideration the changes to Diceyan theory, changes that have come about from our acceptance that the people are sovereign, and changes from the fact that we now operate under two legislatures and two spheres of primary legislation? So we now have practice. We now have the judicial view not only of Diceyan approach but the standing of institutions—this Parliament and the Scottish Parliament —and we have acceptance of the sovereignty of the people. If that is the characterisation of the institutions themselves—democratic, enduring, their legislation trusted as a result—I have no difficulty with there being a recognition that the Scottish Parliament as an institution, and the Scottish Government formed within it, should be permanent fixtures of our constitution, and their standing recognised. That is consistent with the trend we have been developing.

Is it the end result? I hope that the end result will be a more codified, United Kingdom-wide written constitution and then perhaps a new Act of Union containing a new statement of union. That will be the missing factor, but I find it inconceivable, as my noble and learned friend said, that the Scottish Parliament would not be a permanent part of that factor. So we should go ahead and allow the Bill to stand without Amendment 1.

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% 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.]

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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.

Lord Hope of Craighead: Does the noble Lord accept that he has very cleverly been answering the conundrum that I put to the noble Marquess, Lord Lothian, of trying to translate “permanent” into some other language that fits constitutionally with our established principles? I was suggesting that one should not be too tied by the word “permanent”, which is used by lay men, and the noble Lord has perhaps cleverly expressed a way of doing that.

Lord Kerr of Kinlochard: I am very grateful to the noble and learned Lord but I refuse to be drawn into a debate among lawyers about how clever I am.

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Lord McAvoy (Lab): My Lords, I do not know whether I should have asked for a suit of armour before coming to the Dispatch Box this afternoon, but here we go. First, I thank the noble and learned Lord, Lord Hope of Craighead, for being the only speaker so far in this debate, with the possible exception of the right reverend Prelate the Bishop of Chester, to recognise that the mandate for the Westminster Parliament is held in Scotland at the moment by the Scottish National Party. It clearly won the election and it is a blow to this House—that is, there is something missing from it—when we do not have that voice here to put its point of view. The great defenders of democracy this afternoon have not seen fit to refer to that lack of democracy, so I thank the noble and learned Lord. I know that he was not putting forward the Scottish National Party’s point of view but he was putting forward views that it has represented at various times, and there is nothing at all wrong with that.

I also take this point of view. If there is consensus on the changes that the noble and learned Lord, Lord Hope of Craighead, is putting forward—consensus between the UK Government and the Scottish Government that these provisions are technically superior and would improve the legislation—we would be happy to support his amendment. We welcome the noble and learned Lord’s initiative in doing this.

Everybody recognises the position of the noble Lord, Lord Norton of Louth, as that of probably the prime constitutional expert, but he does not always get it right. I am sure he is modest enough to recognise that as well. The thing is that these amendments were moved by Labour in the House of Commons and, to the Government’s credit, they accepted them.

I have to express a level of disappointment, which the right reverend Prelate identified. It seems that some Members of your Lordships’ House are still fighting the devolution battle, which was lost in the referendum of 1998. The danger for your Lordships’ House, although I am not saying that this is the case, is in coming across as unconstructive by objecting to the very existence of devolution, and putting forward with negativity amendments that would destroy the whole concept of the Scottish Parliament. Not all the amendments tabled but many of them would destroy that concept. The facts of life are that while I fought on the other side, the people in Scotland—

The Marquess of Lothian: Can the noble Lord explain how the removal of new subsection (1) would affect the existence of the Scottish Parliament?

4.45 pm

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

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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.

Lord Kerr of Kinlochard: We Scots are quite a canny lot. Is the noble Lord quite sure that Scots would not spot that a declaratory law adds nothing? He said he opposed every one of the amendments, but he did not

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state in terms—no doubt he now will—that he opposed the one I drafted on my feet, which would limit the ability of the Westminster Parliament to change the provisions relating to Scotland by adding conditions such as a referendum and a vote in the Scottish Parliament. Is he quite sure that it would not cut more ice in Scotland if one was defining rather than declaring permanence?

Lord McAvoy: I appreciate what the noble Lord said and apologise for not dealing with his amendment comprehensively. Even as he was saying that, it occurred to me that the reason we object to this is that it is laying down the law—to use that phrase—to the Scottish Parliament as to what they must do. The noble Lord, Lord Forsyth, may be trying to do that but I am not. That would be seen as trying to impose conditions on the Scottish Parliament. I take the point that not every Scot goes about saying, “I need to have this word ‘permanence’”. I take it that the noble Lord, Lord Kerr of Kinlochard, stays in Scotland.

Lord Kerr of Kinlochard: Is there a residential qualification to take part in these debates?

Lord McAvoy: No, and I am sorry if the noble Lord took that the wrong way. However, I spend my life in Scotland, week in, week out. I listen to people there and am heavily involved in community organisations. I am not trying to devalue the noble Lord’s point of view but I can speak only from my experience. There is a suspicion there—justified or not—about Westminster trying to lay down the law. I know I tempt fate saying that in front of the noble Lord, Lord Forsyth, but there we go. We are suspected of laying down the law in a popular way, not in a legal way—once again, there are too many lawyers. We are talking about how this would be seen as being dictated to by Westminster and interference in the mandate. The Smith commission had the agreement and we are pushing that forward. We would be interested in supporting the amendment of the noble and learned Lord, Lord Hope of Craighead, and I look forward to an interesting night.

The Advocate-General for Scotland (Lord Keen of Elie) (Con): First, I thank all noble Lords and the right reverend Prelate for their informative submissions, observations and comments, with regard to both Clause 1 and the proposed amendments to it. I begin by making a number of general observations. First, no one on the Government Benches is in any doubt about the supremacy and sovereignty of the United Kingdom Parliament. In that regard, I take issue with some of the comments of the noble Lord, Lord Purvis. Ultimately, it is for this Parliament to determine the constitutional arrangements of the United Kingdom.

The noble and learned Lord, Lord Hope, alluded to some observations he made in the case of AXA General Insurance and others in 2011. I recall those well. He may in turn recall that my client came second in that case. Reference was also made to some obiter dicta of the noble and learned Lord in the case of Jackson, to which we would not necessarily subscribe. However, they are there and are a helpful insight into the thinking of the court at that time with regard to the issue of sovereignty.

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The purpose of this Bill is to implement the Smith commission agreement. To suggest that there is no mandate for that is, in my respectful submission, quite inaccurate. Each of the five political parties in Scotland went into the Smith commission and negotiated the terms of an agreement. The Government have undertaken to seek to implement that agreement. That is the purpose of this Bill.

Lord Maxton: On that point, all the political parties went into that Smith commission and all of them signed the report. However, the Scottish National Party immediately came out of the Smith commission, John Swinney among them having signed the report, and rejected it.

Lord Keen of Elie: I am aware of the conduct of the Scottish National Party in that regard and do not make any comment at this stage upon that. Perhaps it will be seen by others as extremely unfortunate that it should have lent credence to the agreement and then sought to renege from it. The point that we make is that it was signed—it is an agreement. It is in that context that this Bill is brought forward.

As I say, no one on the government Benches seeks to take issue with the proposition that this Parliament is sovereign and supreme. What we have here is a provision in the Smith commission agreement that we should recognise the permanence of the Scottish Parliament. It has been observed that it is, in a sense, already permanent—so be it—but let us remember that Clause 1 is concerned with a political statement, as much as any legal statement. That is its purpose, and it is not wholly exceptional in that regard. The noble Lord, Lord Norton, made reference to the Cabinet Office provisions on legislation at Chapter 10.9 of the Guide to Making Legislation. But when looked at, it expresses a generality—and, where there are generalities, there may of course be exceptions. This is one of those exceptions. I note that my noble friend Lord Forsyth agrees with me on that point.

My noble friend in turn suggested that there was little if any precedent for this form of legislation. I remind him that the Act of Union with Scotland of 1706, under the Gregorian calendar, referred to a Parliament of Great Britain for all time. In saying that, it made a political statement as much as a legislative provision—and that, again, is what we are doing here. We are recognising the political reality reflected in the Smith commission agreement.

Amendments 1 and 3 seek to modify Clause 1 by removing reference to permanence of the Scottish Parliament and the UK Government’s commitment to the permanence of that Parliament. We would not consider that appropriate. It appears to us that, in light of the Smith commission agreement, the Government should be prepared to make that political declaration of permanence. It does not take away from the supremacy or sovereignty of this United Kingdom Parliament. That remains.

Lord Cormack: Can my noble and learned friend give any other example of an extra-parliamentary body—the Smith commission in this case—binding

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Parliament, saying that Parliament will do this or that? Can he give any example of any other outside commission or body making such a declaration and binding Parliament?

Lord Keen of Elie: The proposition is not well founded, with respect. The Smith commission is not binding this Parliament in any sense. Whatever the wording of the Smith commission agreement itself, it does not and could not bind this Parliament; it will be for the Parliament of the United Kingdom to decide whether it passes this Bill into law. So I do not accept the underlying proposition that was relied on by my noble friend Lord Cormack in that context.

On the terms of subsection (2) of new Section 63A, a point was raised about the words,

“with due regard to the other provisions of this Act”.

In my submission, those are helpful, because the other provisions of this Act include the cross-references to Section 28 and, in particular, Section 28(7) of the Scotland Act 1998. There again, you have underlined the sovereignty of the United Kingdom Parliament and the right of this Parliament to legislate on all matters, including devolved matters, in respect of Scotland.

5 pm

The noble and learned Lord, Lord McCluskey, suggested an amendment to proposed new Section 63A(2) by inserting the word “only”, but as the definite article is already employed in subsection (2) we would adopt the position that the meaning is already clear and the word “only” is not required in that context.

Amendment 6 was based on the SNP amendments tabled to Clause 1 during the Bill’s consideration in the other place and seeks to provide that permanence could be repealed only if the people of Scotland voting in a referendum and the Scottish Parliament consented to it.

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

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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.

Lord Purvis of Tweed: I am grateful to the Minister because I feel that he may well be making my point for me on the subject of new Section 63A(3). If the Government’s position, which I support, is that there can be change only if the people of Scotland make it in a referendum, does that not adjust the absolute sovereignty of this place, which can make an unfettered decision?

Lord Keen of Elie: Clearly it is not, because, notwithstanding the outcome of any such referendum, this place might decide not to legislate in accordance with the outcome of the referendum. One cannot use these arguments to undermine the ultimate sovereignty and supremacy of Parliament.

Lord Hope of Craighead: I shall take up the point that the Minister made about Clause 1 as a whole—I think he was referring to the whole clause as it now stands, with all three new subsections—that it was simply

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a political statement. New Section 63A(3) is not just a political statement; it lays down a condition. If that is the right reading of the new subsection, does the Minister not recognise that it might be better to address some of the possible imperfections in new Section 63A(3) as it stands? The noble and learned Lord, Lord Wallace, among others, made the point that the phrase “the people of Scotland” is a little ambiguous, and it might be better to say “a referendum held in Scotland” to tell you where the referendum is going to be.

It is quite commonplace in Committee debates for Ministers to say, “We’ll take this away and look at it and perhaps reconsider whether the wording we have in the Bill is the best that could be used”. I wonder whether the Minister would be prepared at least to look at proposed new paragraph (b) in Amendment 6; leaving aside the mention of the Scottish Parliament in its proposed new paragraph (a), it suggests a rewording of new Section 63A(3) to see if it is the best wording that could be adopted. I absolutely accept that it deals with a hypothetical situation but, if one is laying down a condition, would it not be better to use the best possible terms in doing so?

Lord Keen of Elie: I am obliged to the noble and learned Lord for reminding me of the observations made by the noble and learned Lord, Lord Wallace, in that context. At this time the Government consider that we have achieved the best possible wording for the purposes of new Section 63A(3) in Clause 1. I compliment the noble Lord, Lord Forsyth, on his eyesight and his ability to read my notes at such a considerable distance. However, the position of the Government remains that we are satisfied that a relatively open provision in this context with regard to the people of Scotland voting in a referendum is the appropriate way forward.

Lord McAvoy: The Minister said a minute ago that the result of any referendum would not be implemented if the Bill were passed and became an Act. That is the reply that was given, and in the current atmosphere it will set lots of hares running. Would he care to clarify?

Lord Keen of Elie: I would be pleased to clarify. We were speaking theoretically in the context of the supremacy and sovereignty of this Parliament. In the light of the referendum finding that the Scottish Parliament should be abolished, it would be necessary for legislation to be put forward. It would in theory be possible for that legislation to be defeated in this Parliament. That is all that I was saying. However, we are in the realms of extreme speculation here—or it appears to me that we are.

Lord McCluskey: My noble and learned friend Lord Hope has pointed out the possible difficulty in the current wording. I am very fond, as are many Scots, of the well-known tennis player called Andy Murray. Is he one of the “people of Scotland” in new Section 63A(3)?

Lord Keen of Elie: I am not in a position to say whether he or any other individual falls into that category, and at this stage I would not speculate on his status.

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Lord Cormack: If my noble and learned friend cannot answer that very simple, straight question, does not that in itself indicate that he must recognise the validity of the comments of the noble and learned Lord, Lord Hope, that the Bill is capable of further improvement? In his eyes—not necessarily in ours—it was improved in the other place. Is he saying that the Government have got it absolutely right and it cannot be improved in this place?

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.

Lord Purvis of Tweed: Just to carry on a little around the House: the Minister did not make it clear at the Dispatch Box when he said that the people of Scotland would not necessarily be sovereign if this Parliament did not adhere to the result in that referendum. That is absolutely contrary to the Edinburgh agreement that the Prime Minister signed, which stated that the Government would respect that view. The sovereignty of the people should be absolute, not anything else he may say at the Dispatch Box this evening.

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

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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.

Lord Purvis of Tweed: In that case, can the noble and learned Lord expand on the meaning of the Government’s wording in this clause? It states that,

“the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum”.

Therefore, if the people of Scotland vote in a referendum and make a decision, and the Government or Parliament then disregard the view and the decision of the people of Scotland, does that mean that this clause has no purpose at all in legislation? If that is the case, what is the point of this wording being in the Bill?

5.15 pm

Lord Keen of Elie: It has a purpose inasmuch as it determines that there cannot be abolition without a referendum. I am simply making the point that, as this is a sovereign and supreme Parliament, it could decline to legislate in accordance with the terms of that referendum result. However, politically that just would not happen.

Lord Davidson of Glen Clova (Lab): Perhaps I may intervene. The noble and learned Lord—I was going to say “my noble and learned friend” but he is not in this context—has made it entirely clear, beyond peradventure, that this Parliament may do what it chooses because it is sovereign. When he says that this Parliament makes a declaratory statement, that is within its sovereign power. Surely that is the end of this point. If Parliament decides to make this declaration, then so be it.

Lord Keen of Elie: I am obliged to my noble and learned friend. It seems to me that we make no further progress on this point, notwithstanding the further observations of the noble Lord, Lord Purvis. I simply underline the sovereignty of this Parliament, and nothing

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in Clause 1 derogates or takes away from that. That is the bottom line. It is necessary to make progress with this Committee debate rather than to stay in still waters on one sterile point. Therefore, at this point I urge the noble Lord to withdraw his amendment.

Lord Hope of Craighead: Perhaps I may return to new subsection (3), which relates to a separate point from the one that the Minister has been emphasising concerning the sovereignty of Parliament and so on. If we look ahead to the day some time next year when this Bill comes back on Report, it is quite likely that there will be an amendment seeking to reword new subsection (3), perhaps along the lines that have already been discussed. I respectfully suggest to the Minister that he would carry a little more credibility if he were to depart just a fraction from the briefing that he is reading from and were prepared to say that he would look again at this. He does not have to commit himself to any rewording, but sometimes when we have these debates in Committee it softens the atmosphere a lot if one is prepared to say simply, “Well, some interesting points have been made. We’ll have another look and perhaps come back with something on Report, or perhaps not”. It would ease the atmosphere a little on this point and avoid repetitive interruptions.

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.

Lord Cormack: I ask my noble and learned friend to respond more positively and helpfully to the noble and learned Lord, Lord Hope. It was a very simple point that he made. All he asked was that my noble and learned friend would reflect on what has been said during this debate and come back at a later stage,

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having reflected. He may be equally adamant, but he really owes it to this House to reflect on what has been said in this debate.

Lord Keen of Elie: With respect to my noble friend, I will reflect upon all observations that have been made in this House, but without commitment.

Lord Norton of Louth: Well, my Lords, this has been a quite fascinating debate. I say to the noble Lord, Lord McAvoy, that I fully accept I am a Lord and not the Lord and therefore am quite capable of getting things wrong. However, on this occasion, I am not sure that I have, given the excellent speeches that we have heard in support of these amendments. I really think it is incumbent to pursue the matter further along the lines that several noble Lords have suggested.

The noble Lord, Lord McAvoy, argues that declaratory statements are appropriate—and indeed they are but, as the guide to legislation makes clear, not necessarily in legislation. Declaratory statements are the sort of thing that should be done at the Dispatch Box. As the Minister pointed out, there have been occasions when declaratory statements have appeared in statute. But what is quite clear from the debate is the unusual context in which we are discussing this, given that it derives from extant legislation and actually complicates, rather than clarifies, what Parliament has already stipulated in legislation.

My starting point in all this is very similar to that of the noble and learned Lord, Lord Hope of Craighead—that the Smith commission heads of agreement said that the Scottish Parliament and Scottish Government will be made permanent. All parties accepted that, as he said, and the debate has proceeded on that basis. It has largely been taken as given.

It strikes me that there are two problems deriving from that. The first is that it has not been properly debated. I really think that the debate this afternoon in your Lordships’ House is the first thorough, proper debate on principle in relation to this issue. What it has demonstrated is the need for further consideration of the matter. The second problem is the extent to which the Government appear to have taken almost literally the heads of agreement—they have just taken what was said and plonked it in legislation. We will see that shortly when we discuss the Sewel convention. The Government’s line is that this is what Lord Sewel said, so that is the convention and the words go into statute. It is not put on a statutory footing; it is just plonked in statute. I think that the same has happened here. Because the heads of agreement said that it would be made permanent, the Government decided to put in place legislation to make it permanent without thinking through the implications.

Those implications have been well drawn out by the Constitution Committee, as my noble friend Lord Lang has pointed out, and I declare an interest as a member of the committee. In the context of the debate, it is well worth reminding your Lordships of the committee’s report on the Bill, especially paragraph 36:

“It is a fundamental principle of the UK constitution that Parliament is sovereign and that no Parliament may bind its successors. There is now a strong argument that Parliament is seeking to limit its own competence in a way that the courts may

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seek to uphold in future given that it rests on a requirement for popular consent. While we recognise that it is extremely unlikely that this will ever be tested in the courts, it is nonetheless symbolically important and we are concerned that these provisions, as currently worded, risk introducing uncertainty concerning the absolute nature of parliamentary sovereignty where there should be none”.

This is an extremely serious issue.

I agree with my noble friend Lord Lothian and the noble Lord, Lord Kerr of Kinlochard, who have come up with some very positive suggestions. As the noble and learned Lord, Lord Hope of Craighead, said, I see no reason why the Government could not at least go away and think about the wording of the clause and come back. As the noble and learned Lord, Lord McCluskey, has said, we must try to do better. I hope that between now and Report that is exactly what we will do. In the mean time, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2

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

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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”.

5.30 pm

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

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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 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.

Lord Mackay of Clashfern: My Lords, this is an interesting amendment. I wonder by whom the recognition is supposed to be given. “Recognised as” requires that someone does the recognising; who is it? This is a much better clause as it stands than it was originally. The process of improvement in Parliament has in fact worked in this case by missing out a nonsensical requirement and replacing it with one that is reasonably clear.