So far as I am concerned, the purpose of a clause of this kind is to declare the situation as it is and as it will be for this Parliament and for any subsequent Parliament that does not decide to repeal it. As we know, the Act of Union was supposed to be for ever, but we are all mortal, and Members of Parliament, in particular, are

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mortal. It may well be that a later Parliament has a different idea. The sovereignty of this Parliament is perfectly clear, but that does not mean that it binds a subsequent Parliament, and therefore there could be a change in a subsequent Parliament.

That brings me to a matter that was referred to about the referendum. The point that is made in the clause is that the Parliament is to be permanent, and therefore there is no question of a referendum until someone decides that there should be a question about that permanence. It is quite inappropriate to include detailed provisions about what would happen in the event of a decision that perhaps the Parliament was not permanent after all in the shape of a referendum. That is a matter which, at the very least, would have to be looked at in some detail, just as recently we have been looking in great detail at the referendum Bill about moving out of the European Union. If a Bill was required to alter the status of the Scottish Parliament, I feel certain that it would need some pretty careful consideration. That probably will not occur in my lifetime or, I suspect, in the lifetimes of most noble Lords who are present, except possibly the very young.

Lord Empey (UUP): My Lords, perhaps I may make a brief observation. The noble and learned Lord, Lord Wallace of Tankerness, quoted the 1998 agreement that affected Northern Ireland. I have to say that if you have a political agreement such as the Smith commission which you are trying to implement, you cannot be expected to translate it word for word into legislation. The Belfast agreement contained diplomatic language, political language, and of course there was an international dimension to it which is not present in the current proposals. The phrase that comes to mind when discussing these matters is, “There is nothing as permanent as the temporary”. We should not be working within an absolutely rigid framework which says that we have to replicate word for word the particular phrases used by the Smith commission.

It is never intended that a political agreement from a commission which has been established should automatically be transferred verbatim into law. That is not feasible and I urge noble Lords not to put themselves completely on the hook over this because of the fear that if something is changed, it will be seized upon by people who will say that you are running away from the agreement. The fact is that those people will seize on it whether you do or whether you do not. That is because we know that they signed up to it, and now they have walked away from it. The issue is this: is it right and proper legislation or is it not? Is it consistent with the aims and objectives that were set out by the commission to which the parties have agreed? I would have thought that that is a better measure for judging the quality of the legislation rather than putting yourself in a terrible position where if you change a word, a dot or a comma, somehow or other you are committing a political sin. That is not what Parliament is here to do. Everyone has been put into difficulty by getting themselves shackled to this proposal.

Baroness Liddell of Coatdyke (Lab): My Lords, we have spent more than two hours arguing more or less about the number of angels dancing on the head of a needle. Ultimately the power of this Parliament,

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and any Parliament, derives from the people. Sovereignty for any Parliament derives from the will of the people. If the will of the people changes then the legislation will change and the future of Parliaments will change.

I do not want to intrude on the personal grief on the government Benches because much of the argument has come from there, but we have to concentrate on trying to move on into how we can make this legislation more relevant to the complex society that we have. There has not been much evidence of that so far. I greatly regret the fact that I never studied law—well, I used to greatly regret that—but I have to say at the end of this afternoon, thank goodness.

Lord Selkirk of Douglas (Con): My Lords, Amendment 2, moved by the noble Lord, Lord Forsyth, can be legitimately accepted by Ministers on the basis that it is a more accurate assessment of the present situation.

When I first became an advocate I was summoned by the Solicitor-General. I went up to him, not knowing what he was going to say, and he said he wanted to know whether I would become a parliamentary counsel. At that time I had not the faintest idea what a parliamentary counsel was so I said I would give him an answer as soon as possible. I then learned that a parliamentary counsel was merely a draftsman, and I fear that if I had given the wrong answer I might still be one of the draftsmen drafting the provisions of this Bill, rather than being given the privilege to comment on the best way forward.

There is no question but that the view generally taken is that the Scottish Parliament is there on a lasting basis and on the basis of permanency. There is no doubt whatever that this Parliament is sovereign and that one Parliament cannot bind future Parliaments. The results of the referendum and the general election both pointed in the direction of the maintenance and security of the United Kingdom, and also of greater powers for the Scottish Parliament. In some ways, we are having to walk a tightrope reconciling those two different aims. However, I believe there is room for manoeuvre, and this is a very small adjustment which the noble Lord, Lord Forsyth, is suggesting. Without losing anything of the political declaratory nature of the first provisions of the Bill, the amendment could legitimately be looked at and acceded to.

Lord McAvoy: My Lords, the Government in their wisdom accepted the Labour amendment in the other place to reflect the Bill as it is. We support that. We think that it was very wise of the Government to do so. It puts the permanency of these institutions beyond any doubt. We all know the law regarding ultimate sovereignty but nevertheless it would be foolish—I am repeating myself—to reject the symbolism of having that in the Bill, so for those reasons we oppose the amendment moved by the noble Lord, Lord Forsyth.

Lord Keen of Elie: My Lords, I begin by making the observation that, without commitment, of course we are listening and of course we reflect upon the terms of this debate. There can be no question about that. We are here for that very purpose. I do not accept the

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implication that somehow we have come here with our ears closed or our minds closed, because that is not the case. I say that without commitment.

In the context of this amendment, the words “recognised as” appeared in the original drafting of the clause. I cannot accept the observation of the noble Lord, Lord Lang, that by amending a clause of this kind we end up with second best. With great respect, that is to invert the whole process of Parliament. The object of amendment—of adjustment—is to achieve a better result, and that is what the Government believe was achieved by accepting the amendment put forward by the Labour Opposition in the other place.

I note—and with great respect adopt—the observation of the noble and learned Lord, Lord Mackay of Clashfern, that if you go down the route of “recognised as”, it opens up the question of recognised by whom, in what circumstances and why? That seems wholly unnecessary in the context of this form of declaratory provision within the clause. In these circumstances I invite the noble Lord, Lord Forsyth, to withdraw his amendment.

5.45 pm

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

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

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

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

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Lord Davidson of Glen Clova: I take the point that issues of politics can intrude into questions of drafting, but if the noble Lord looks at Clause 2 he will see that the words—I hope I am not stealing his thunder in this regard—“it is recognised” are also found there. Does he take exception to that?

Lord Forsyth of Drumlean: I was not taking exception to anything. I was simply suggesting to the Government that they got it right when they added the words, “it is recognised” to the original Bill, and they got it wrong when they took them out. Fortunately I am not a lawyer, but as a layman, removing the words “it is recognised” indicates that no other party is involved in considering the status of the Parliament.

Lord Norton of Louth: Would my noble friend not wish to call in aid Clause 2 where the Government wish to insert the Sewel convention with the words, “But it is recognised”?

Lord Forsyth of Drumlean: That is the same point, and I am trying to get on to Clause 2. I have to say to my noble and learned friend that as ever, and always, I am trying to be helpful to the Government, I thought that perhaps on reflection they might wish to add those words. I hope that the Minister will consider the debate we have had on these matters and perhaps come back with his own wording. The clause, as it stands, is completely unsatisfactory, but I beg leave to withdraw my amendment and give notice that we may return to this at a later stage in the proceedings of the Bill.

Amendment 2 withdrawn.

Amendment 3 not moved.

Amendment 4

Tabled by Lord McCluskey

4: Clause 1, page 1, line 11, after first “The” insert “only”

Lord McCluskey: In light of the answer relating to the word “only”, to the effect that it is implied by the use of the definite article, I see no need to pursue this at this stage. I will not move this amendment and I intimate an intention not to move Amendment 5.

Amendments 4 and 5 not moved.

Amendment 6

Tabled by Lord Hope of Craighead

6: Clause 1, page 1, leave out lines 15 to 17 and insert—

“( ) Subsection (1) may only be repealed if—

(a) the Scottish Parliament has consented to the proposed repeal; and

(b) a referendum has been held in Scotland on the proposed repeal and a majority of those voting at the referendum have consented to it.”

Lord Hope of Craighead: In the light of what the noble and learned Lord, Lord Keen, said, I understand that he will at least reflect a bit on what was said earlier. We may return to this on Report, but for the time being I will not move the amendment.

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Amendment 6 not moved.

Amendment 7 not moved.

Amendment 8

Moved by Lord Forsyth of Drumlean

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

Lord Forsyth of Drumlean: This amendment again relates to an issue that we touched on in our discussion of earlier amendments. The amendment would require that any referendum, as proposed in new Section 63A(3) as inserted by Clause 1, regarding the abolition of the Scottish Parliament, which I must say is highly unlikely, should be a referendum for the whole of the United Kingdom. If there were circumstances where perhaps we had a new Act of Union, or we were establishing a new federal constitution, or—this is hard to imagine—the Scottish Parliament was to be abolished, it would have huge implications for the rest of the United Kingdom.

If there was to be a referendum, it would be, as provided in the Bill,

“on the basis of a decision of the people of Scotland”.

We have had some debate as to who the people of Scotland are and whether Mr Andy Murray is in that category. If there was to be a referendum, I accept that proposals would need to be brought forward for its conduct, but at a later stage in the Bill we give the powers to set the rules and nature of referendums to the Scottish Parliament. Would that apply to this particular referendum? It seems to me that if we were making a huge change, where we were bringing back into the United Kingdom a system of government—perhaps into this Parliament or some other system of government—that that would be a matter for the whole of the United Kingdom, not just the people of Scotland. Therefore, my amendment would simply substitute “Scotland” for “the United Kingdom”. I beg to move.

Lord Empey: My Lords, the noble Lord, Lord Forsyth, makes a good point in so far as referenda in one part of the United Kingdom clearly have implications for the others, but there would be fairly significant inconsistency. If we look at the Belfast agreement and its proposals for a referendum in Northern Ireland, it is exclusive to the people of Northern Ireland. If the carry-through from his amendment would be that the people of the rest of the United Kingdom would have to vote in that referendum as well, that would mean that there could be two different outcomes. So clearly there are difficulties.

I fear that we are trying to treat the Smith commission and the political issues swirling around it as if they were a treaty rather than a piece of domestic legislation. That is why we are getting ourselves into difficulty here. This amendment would need to be looked at very carefully because of the inconsistencies that could arise. I accept entirely that additional powers to a devolved region would affect everybody else, but, equally, a referendum regarding sovereign status is a very different thing.

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Lord McAvoy: My Lords, not to anyone’s surprise, we oppose the amendment. It was our amendment in the House of Commons that made it clear that it should be the Scottish people who determine the permanency of their Parliament. It is not a decision for the United Kingdom as a whole.

I believe firmly in the role of this House as a revising Chamber. Therefore, there is no question of having to have a mandate, to be elected or any other method of claiming to represent people. With respect to the noble Lord, Lord Forsyth of Drumlean, it has to be taken into account that he has no mandate for this type of quite dramatic intervention. There is not much of a cry in England, Wales and Northern Ireland for inclusion in such a referendum. It would also pose the additional point made by the noble Lord, Lord Empey, that it would lack consistency and political reality to include the whole of the United Kingdom in a referendum in Northern Ireland, although I accept that there are unique circumstances in Northern Ireland.

I hope that I am not getting too repetitive, but it is my opinion, based on my experience of living and staying in Scotland—I have been in Scotland all my life—that there would be complete outrage if such an amendment were supported by this House. I ask colleagues to reject it.

Lord Keen of Elie: I am obliged to noble Lords. I reiterate that the purpose of the Bill is to implement the recommendations in the Smith commission agreement. I noticed that the noble Lord, Lord Smith, has already observed that the terms of the Bill do that. This provision is consistent with the spirit of the agreement. It is also with precedent, if I can put it in that context. The referendum in 1997 over the matter of devolution was a referendum of the people of Scotland. The referendum on independence in 2014 was a referendum of the Scottish people. It is considered appropriate that we should continue with that model. I note that the noble Lord, Lord Empey, pointed out that the Northern Ireland Act 1998 proceeds in a similar vein. So it is consistent and appropriate that, for the purposes of this Bill, any such referendum—the noble Lord, Lord Forsyth, himself acknowledges how extremely unlikely it is that that would even be contemplated —should be a referendum of the Scottish people. I therefore urge him to withdraw the amendment.

Lord Forsyth of Drumlean: I am most grateful, but before my noble and learned friend sits down, could he tell me where in the Smith commission agreement there is a proposal that there should be a referendum of this kind?

Lord Keen of Elie: There is no express reference in the Smith commission agreement to a referendum. As my noble friend is aware, that provision was brought into the Bill in the belief that it would strengthen the political statement contained in Clause 1 with regard to the permanence of the Scottish Parliament.

Lord Thomas of Gresford (LD): My Lords, I believe that this introduces the Welsh element. There would be a profound disinterestedness in Gresford about whether the Scottish Parliament exists or not, save in so far as the Barnett formula gives them so much more money than we get. On the other hand, we would resent it hugely if the noble Lord, Lord Forsyth, had a vote in a referendum for the abolition of the Welsh Assembly, or, indeed, any successor.

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Lord Forsyth of Drumlean: I know that the noble Lord has not been following our proceedings so closely, but the point being made here was not about the status of the Scottish Parliament. In our earlier discussions I made the point that I cannot imagine circumstances in which we would want to abolish the Scottish Parliament, but it might be, for example, that the noble Lord’s party’s proposals to create a federal constitution and to have a new Act of Union were implemented. That might mean dissolving or altering the Scottish Parliament as it stood.

I do not like Clause 1 and new subsection (3), which provides for this referendum. I tabled the amendment to make the point that the future of the Scottish Parliament were it to be changed, now that we have gone down this road so far—and will have gone further when the Bill becomes an Act of Parliament—must be a matter for the whole United Kingdom. I cannot conceive of any other circumstances in which that would happen. I suppose that it could be that the nationalists had made such a hash of it that people in Scotland were pleading for the thing to be shut down and then come back. However, there would then be issues for the Welsh, the English and the Irish about the funding, the obligations and other matters that would arise. All this is pretty hypothetical and extreme but it has been put there in order to mislead people about the nature of devolution, which is power devolved from this sovereign Parliament. It is important that the legislation should not seek to mislead people.

6 pm

I was impressed by the argument put forward by the noble Lord, Lord Empey. I confess that I had not thought about the Northern Ireland precedent. The problem here is not my amendment, it is new subsection (3), which provides for a referendum on abolition. Throughout the whole period when these proposals have been discussed, Ministers have been at pains to say: “All we are doing is implementing the proposals of the Smith commission”. There is no such proposal in the Smith commission, as my noble and learned friend has confirmed. Along with the declaratory words in this clause, the referendum provision is making a political comfort statement to people who wish to destroy the United Kingdom, who are opposed to devolution and see it as a ram or a wedge by which they will split the United Kingdom and achieve their objectives. I am not keen on helping these people in that process and that is why I do not particularly like new subsection (3) but I accept that my amendment will not do the job. However, it has perhaps helped to expose the fact that the Government are putting into the Bill stuff which has nothing to do with the Smith commission but which has another political purpose that is extremely unwise. I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Amendment 9

Moved by Lord Forsyth of Drumlean

9: Clause 1, page 1, line 17, at end insert—

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

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Lord Forsyth of Drumlean: My Lords, I hope I will get a bit of a break after this one. Having argued earlier that it was completely inappropriate to use legislation to write political graffiti—which is what the Government are doing—I reluctantly came to the conclusion that we would perhaps be unable to persuade the Government to rub it out. This amendment, therefore, adds some graffiti of my own. It does what I have been saying we should not do, which is to use legislations to make declaratory statements. However, the declaratory statements included in the Bill as it stands are so misleading that it is essential to add this amendment which simply adds, after line 17, the words:

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

I have not been counting, but I have heard my noble and learned friend say that so many times. As he has argued that it is necessary to have declaratory statements in the legislation for a political purpose, that there is nothing wrong with it and that there are precedents for it; and as he has said over and again that nothing in this Bill alters the sovereignty of the United Kingdom Parliament, I am looking forward to him accepting the amendment with enthusiasm.

Lord McAvoy: My Lords, is it not the case that the sovereignty of the UK Parliament is already protected by Section 28 of the Scotland Act 1998, which provides that the UK Parliament can always legislate for Scotland?

Lord Keen of Elie: My Lords, I compliment the noble Lord, Lord Forsyth, on his optimism. The position is clear: we have repeatedly stated, across this House, that the United Kingdom Parliament is a sovereign Parliament. The noble Lord decided to seek a declaratory statement of that. I submit that this is wholly unnecessary: it is beyond doubt that this Parliament is supreme and sovereign. This is restated by Section 28(7) of the Scotland Act 1998. The existing declaratory statements in Clause 1 are not in any sense misleading. They are an expression of a political reality and they are intended to declare that reality as clearly as possible, acknowledging all along the supremacy of this, the United Kingdom Parliament. The proposed amendment is wholly unnecessary and, if anything, is misleading it is the necessity for it. I urge the noble Lord to withdraw it.

Lord Cormack: I will not prolong this brief debate unduly, but my noble and learned friend seems to be adopting a fairly intransigent line. If it is permissible to make declaratory statements to appease those who would destroy the United Kingdom, is it not permissible to insert them for those who are dedicated to its future?

Lord Mackay of Clashfern: That may well be so, but there is already a declaratory statement in the Act which the Bill amends. It was pointed out that, under Clause 1, the other provisions of that Act were to be taken into account. One of those is Section 28(7). I will not say anything about the proposed amendments to Clause 2; the situation may be slightly different there.

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Lord Tebbit (Con): My Lords, I have tried to follow this. It is not unduly easy but it would help me greatly if my noble and learned friend, in his reply to the noble Lord, Lord Forsyth, could explain where it is set out in the legislation, as a declaratory statement, that nothing in it affects the sovereign power of this Parliament. If he is unable to find that bit, would it not be a good idea to do as my noble friend Lord Forsyth says and put it in?

Lord Forsyth of Drumlean: Perhaps I can help my noble and learned friend. Throughout this afternoon, he has argued that it is essential—for political reasons—to put in Clause 1 words that say the Scottish Parliament is permanent. He has argued that we should understand that no Parliament can bind another and that the sovereignty of the UK Parliament remains. All my amendment seeks to do is to add a few words to the clause which give the reassurance that he has been giving to the Committee. I am not a lawyer, but after Pepper v Hart and all that, what is said at the Dispatch Box does actually matter. For him to say that he could not add it to the clause because it would be redundant or that you can find, buried in the previous Scotland Act—

Lord Mackay of Clashfern: It has to be remembered that this Bill is amending the Scotland Act. This provision, which my noble friend Lord Forsyth of Drumlean wants to put in, happens to be there already in Section 28(7). That is my objection. Repetition may be a good idea, for all I know, but it is there already. The point made by the noble and learned Lord, Lord McCluskey, about unnecessary legislation might come into this. There does not seem to be much need for it, especially when Clause 1 refers to the other provisions of the Scotland Act, into which this is being embedded.

Lord McCluskey: The actual wording of Section 28(7), which I do not suppose many noble Lords will have memorised, reads:

“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.

It does not talk about the sovereignty of the United Kingdom Parliament at all. It talks about its continuing power to make laws for Scotland.

Lord Keen of Elie: I hesitate to rise again—

Lord Forsyth of Drumlean: I shall give way to my noble and learned friend in a moment. I wish to deal with the points that have been made and what my noble and learned friend Lord Mackay indicated the section said. I have huge respect for him. You always know that the Government are in difficulty when he has to come to their aid. He said that the relevant provision was already in the Bill. However, as the noble and learned Lord, Lord McCluskey, has pointed out, it says nothing of the sort. If this provision was already in the Scotland Act, my noble and learned friend could have said, “In order to make that clear, we will move that provision into this clause in the new Bill”. It is not necessary to duplicate it. The point is that the Scotland Act, as amended by this Bill—if it becomes an Act—will have in it sentences which, to say the least, are very provocative in terms of the

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continuing powers of sovereignty of this Parliament. Therefore, it is not unreasonable to think that any declaration about the sovereignty of this Parliament should be placed alongside the provision in that section of the Act.

I am most grateful to the noble and learned Lord, Lord McCluskey, because I thought that what my noble and learned friend said from the Dispatch Box was a little misleading, to say the least.

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

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

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

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

Lord Keen of Elie: I apologise to my noble friend Lord Forsyth. I must confess that I was unclear who was intervening on whom. I add to the point made by my noble and learned friend Lord Mackay of Clashfern. As I understand the point he was making—it was one that I had endeavoured to make before, but obviously

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had not made clearly—it is simply that Clause 1 is amending and introducing Section 28(8) of the Scotland Act 1998. It is necessary to read that in conjunction with Section 28(7) of the Scotland Act 1998, which refers to the ability of this Parliament to legislate in respect of Scotland on all matters. That is a matter to which the noble Lord, Lord McAvoy, alluded earlier as well. That is why the issue of sovereignty—the supremacy of this Parliament—is already contained in the relevant section of the Scotland Act, as it will be amended by this clause of the Bill.

Lord Hope of Craighead: I am grateful to the noble and learned Lord for giving way, but Clause 2 amends Section 28. We are still talking about Clause 1, which amends a different part of the Scotland Act, so there is a separation there. However, I very much endorse what the noble and learned Lord, Lord Mackay of Clashfern, said—namely, that any reader of the Scotland Act knows perfectly well that you have to look at Section 28 to understand the competence of the Parliament and the relationship between the two Parliaments. The point is simply that Clause 1 does not deal with Section 28.

6.15 pm

Lord Keen of Elie: I accept that correction from the noble and learned Lord. I believe that Section 63 would be amended under Clause 1. However, essentially, the point is that if you read through the whole of Section 28, subsection (7) of that section makes it absolutely clear that this Parliament remains supreme and sovereign in the matter of legislation for Scotland, whether it be reserved or devolved.

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

The Marquess of Lothian: The Marquess of Lothian!

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

Lord McAvoy: The noble Lord is trying to paint a picture of government intransigence. As the Government’s Official Opposition, as distinct from the unofficial opposition, I suggest that one cannot complain when

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changes are made in the other place thanks to debate, and the Government see the worthiness of that and accept it, and then complain because they do not accept the noble Lord’s amendment. I think he is painting a totally unfair picture of the Government.

Lord Forsyth of Drumlean: For a moment, when the noble Lord referred to the Official Opposition and the unofficial opposition, I thought he was referring to the new leader of the Labour Party. I beg leave to withdraw my amendment.

Amendment 9 withdrawn.

Clause 1 agreed.

Clause 2: The Sewel convention

Amendment 10

Moved by Lord Forsyth of Drumlean

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

Lord Forsyth of Drumlean: My Lords, surely the Government can accept this amendment. The Sewel convention, as its name suggests, was a convention established by Lord Sewel during the passage of the first Scotland Bill. The Government are proposing in Clause 2 of the Bill to incorporate the Sewel convention into statute, so that it will have a statutory effect. Therefore, it will cease to be a convention; it will be part of statute. My amendment seeks to remove the words “The Sewel convention” from the Bill, as the Bill seeks to put the Sewel convention on a statutory basis. Henceforth, the Sewel convention will be a section of the consolidated Bill. Surely my noble and learned friend the Minister has been given some discretion in his brief to accept this amendment. I beg to move.

Lord Norton of Louth: My Lords, I signed this amendment, and support it. I want to reinforce what my noble friend Lord Forsyth has said. In a way, this will lead into a much fuller discussion on the next set of amendments looking at the content of the clause. But my noble friend is absolutely right about the heading. Either you have a convention or you have a statutory provision. You cannot have a convention in statute, although that is what the Government are seeking to do. This would remove doubt on that point and I concur completely with what my noble friend has said. We will be coming back to the actual substance in more detail, but I think this is a necessary change to the clause.

Lord Stephen (LD): My Lords, it is worth giving support to this amendment and pointing out that the original Sewel convention changed over time. In the Scottish Parliament we used to refer to a “Sewel Motion”, but as the convention developed we introduced the term “legislative consent Motion” and dropped the other term. The Sewel convention was also changed and widened, which we will debate in subsequent amendments. It does seem something of an anomaly.

An interesting point is whether a Member of this House can make an amendment to the title of a clause in this way. It is an interesting point which I hope might be commented on by the Minister. In the past, other Members of this House have been told that that

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would not be appropriate and it would perhaps be possible for the Government to introduce such a change at a later stage. But it is interesting to see that it is on the Marshalled List today and is being debated. I also note that the noble and learned Lord, Lord Mackay, who is very wise on these matters, is nodding his head, so I think there is an issue there that needs to be explored.

Lord Steel of Aikwood (LD): My Lords, I back up what my noble friend has said. I was in the House when we passed the Scotland Bill and I was never, ever happy with having the Sewel convention translated into law. So I am very glad to support the amendment and it is high time that this was put right.

Lord Keen of Elie: My Lords, first, there is the question of whether the heading is a matter for the parliamentary draftsmen rather than this House, and that is an issue, in my respectful submission. But let us turn to the substance of the—

Lord Forsyth of Drumlean: I did take advice on this. The amendment has been tabled so the amendment is in order, surely.

Lord Keen of Elie: I was going to continue by saying that, the amendment having been tabled, I would look to its substance, which is that the heading should be, “Competence of the Scottish Parliament”. I am reminded of Voltaire’s observation about the Holy Roman Empire, that it was,

“neither holy, nor Roman, nor an empire”.

Clause 2 is not about competence; nor is it about the Scottish Parliament. It restates in statutory terms the procedural convention of the United Kingdom Parliament with respect to its legislation for devolved matters. If we were to have a heading, “Competence of the Scottish Parliament” when in fact we are dealing with a matter that concerns the legislative competence of the United Kingdom Parliament, in my respectful submission, we would not only puzzle historians but confuse everyone else with regard to the content of the relevant clause.

I note what has been said about the present heading. I will reflect upon the observations made about that heading. But given that it is strictly a matter for the draftsmen, I go no further at this time. I hope that my noble friend will see fit to withdraw the amendment.

Lord Purvis of Tweed: I am neither a lawyer nor a historian so I wonder if the noble and learned Lord can help me with his interpretation of this. As this is an amendment Bill to the 1998 Act, once this clause takes effect, if Parliament approves it, will this title actually exist in the amended 1998 Act? If it does not, is this not all rather academic?

Lord Keen of Elie: As I understand it, the title will not exist in the amended 1998 Act. The title is a matter for the parliamentary draftsmen but, as my noble friend Lord Forsyth observed, the amendment was put on the Marshalled List and therefore it is addressed. As I say, I will reflect upon his observations, but at this stage I urge him to withdraw the amendment.

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Lord Forsyth of Drumlean: My Lords, I am very happy to withdraw it. I am grateful to my noble and learned friend for relieving me of the responsibility for adding to the statute book the words, “Competence of the Scottish Parliament”. But the point remains that it would be ridiculous to put the Sewel convention into statute and to retain a reference to the Sewel convention. If he is saying, as the noble Lord, Lord Purvis, has very helpfully indicated, that in the consolidated Bill the words “the Sewel convention” will disappear from statute and that the Sewel convention will cease to exist as such because it will now be incorporated in statute, I am absolutely delighted. I am happy to withdraw the amendment with that reassurance. Perhaps he could just give us that assurance and then there will be less for him to reflect on.

Lord Keen of Elie: The term “the Sewel convention” will remain in this Act but will not appear in the amended Scotland Act 1998, which is going to be the relevant amended legislation.

Lord Forsyth of Drumlean: Right, well, I beg leave to withdraw the amendment but give notice that we will return to this at a later stage in the Bill.

Amendment 10 withdrawn.

Amendment 11

Moved by Lord Stephen

11: Clause 2, page 2, line 3, after “Parliament)” insert “in subsection (7) at the beginning insert “Except as provided for in subsection (8),””

Lord Stephen: My Lords, in moving Amendment 11, I will speak also to Amendments 15 and 16, which are in my name and that of my noble and learned friend Lord Wallace of Tankerness. We have also signed Amendment 14 in the name of the noble Lord, Lord Cormack, which leaves out the word “normally” in Clause 2.

As background, and to develop what I was saying earlier, Amendments 15 and 16 provide for the consent of the Scottish Parliament to be sought in the event of any alteration to,

“the legislative competence of the Scottish Parliament or the executive competence of the Scottish Government”.

I acknowledge the support that has been given by the Law Society of Scotland in terms of the background and the drafting of these amendments, which reflect normal working practice—the normal arrangements that exist currently and have developed, as my noble friend Lord Steel of Aikwood identified, over the period of the existence of the Scottish Parliament; that is, since 1999.

The Sewel convention applies when UK legislation makes provision specifically designed for a devolved purpose. The convention has been agreed in memoranda of understanding and by the House of Commons Procedure Committee, and its practical usage is explained in Devolution Guidance Note 10. DGN10 does not apply to incidental or consequential provisions in relation to a reserved matter. It does apply to draft Bills and Private Members’ Bills. It will also apparently continue to apply to any statutory formulation of the convention. It is significant that DGN10 also requires the consent of the Scottish Parliament in respect of provisions of

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a Bill before the UK Parliament which would alter the legislative competence of the Scottish Parliament or the executive competence of Scottish Ministers. It seems, however, that Clause 2 would not apply to this latter category of provision so Amendment 16 is intended to remedy that deficiency.

The Secretary of State for Scotland in the other place rejected the arguments in relation to this. When these matters were considered in Committee on 15 June, David Mundell stated:

“On amendments 19 and 20 … as I have said, the Bill adopts the language that formed the basis of the Sewel convention … We have established that the Bill clearly states that the UK Parliament ‘will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.’ That is what the well-established Sewel convention does, and it has been consistently adhered to by successive UK Governments. We have had more than 15 years of good practice of the convention. It has not been breached. In the context of my earlier remarks, I do not accept that it could be. I believe that that current good practice will continue”.—[Official Report, Commons, 15/6/15; col. 107.]

Unfortunately, Clause 2 deals with only part of the Sewel convention—the part declared by Lord Sewel in the Scotland Bill back in 1998—and does not cover the point in DGN10 about changes to the legislative competence of the Parliament or the executive competence of the Scottish Government. This deficiency may indicate that the good practice which the Secretary of State wishes to preserve will not apply to these types of issue. My simple question would be: why leave the doubt?

Amendment 11 would qualify Section 28(7) of the Scotland Act 1998 to allow for the possibility of circumstances where the power of the UK Parliament to make laws for Scotland is constrained. Taken together with Amendments 15 and 16, Amendment 11 would allow the Scottish Parliament to withhold its consent from UK legislation which relates to devolved matters. Yes, that would impinge on the sovereignty of the UK Parliament but, as someone who supports a federal settlement, I have no problem with restricting the sovereignty of this Parliament. For those who support a constitutional convention—there are many around this Chamber—and those who would support a federal settlement arising from this, we all have to recognise that the sovereignty of the UK Parliament would change.

6.30 pm

Lord Gordon of Strathblane (Lab): In the light of what the noble Lord has said, would it not be logical that legislative consent from the Scottish Parliament should have preceded the legislation that the Committee is discussing today? The Bill is, after all, affecting Scotland yet we do not have the legislative consent of the Scottish Parliament in advance.

Lord Stephen: I agree that there is an issue there. I wonder whether the discussions that will take place in coming weeks, and perhaps even months, behind closed doors between the Scottish Government and the UK Government would be greatly assisted if there was a clear statement on the record from the Scottish Parliament that it supported this legislation. While I believe that both Houses will eventually indicate their support for this legislation, it would be helpful to have that clear support on the record now.

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A lot has been said today about the monolithic, unassailable sovereignty of the UK Parliament but I ask the Committee to consider this point: the UK Government have introduced a concept called English votes for English laws. Perhaps the Minister would care to comment on this: the Government are pursuing a course whereby legislation passed by the House of Lords and the House of Commons can be vetoed by a subset of the House of Commons, so this Government have already conceded the point of a limitation on the sovereignty of the UK Parliament. If it is sauce for the English goose for elected English MPs to veto legislation for England on devolved matters, it must be sauce for the Scottish gander for properly and democratically elected Members of the Scottish Parliament to be able to veto Westminster legislation affecting Scotland on devolved matters.

Lord Hope of Craighead: My Lords, perhaps it would be helpful for me to speak to my Amendment 12, which in effect restates in combination the points just made in support of Amendments 11, 15 and 16. I will also refer to Amendment 20, which deals with a related issue.

I think I saw that the noble Lord, Lord Lang, was about to rise to his feet and the background to my Amendment 12 is paragraph 38 of the Constitution Committee’s report, which draws attention to problems with the Sewel convention as his committee saw them. One problem was the use of “normally”, which gives rise to doubt as to what exactly that means. There was also the need to clarify the reach of the convention, which was the point just made in support of Amendment 11 and its related amendments. My Amendment 12 puts together in a package the same point that was referred to on those other amendments.

Amendment 20, however, deals with an issue which is closely related to existing practice. It refers to a:

“Duty to consult the Scottish Government on Bills applying to Scotland”.

It says, shortly, that:

“A Minister of the Crown must not introduce a Bill into the Parliament of the United Kingdom … that would make provision applying to Scotland unless a Minister of the Crown has consulted the Scottish Ministers”.

It is intended to reflect what I understand to be the existing practice and to follow on the points made in relation to restating Clause 2 in appropriate statutory language.

I should make it clear, as I did earlier on this afternoon, that the amendments to which I am speaking are in words that were in effect provided for me by the Scottish Government because they were tabled in June this year, in advance of Committee in the House of Commons. But I restate that I do not speak to these amendments on behalf of anybody other than myself; I simply see them as sensible amendments which have merit on their own wording. It is with that in mind that I speak to these two amendments.

Lord Davidson of Glen Clova: Could the noble and learned Lord indicate what the Scottish Government see as particularly virtuous about the formula that he suggests in this amendment?

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Lord Hope of Craighead: I am obliged to the noble and learned Lord. There are really two points. First, Clause 2 as worded uses “normally”; secondly, it does not set out in full the way that the convention is applied in practice. These points were made very effectively by the noble Lord, Lord Stephen, a moment ago in moving Amendment 11, which is read together with Amendments 15 and 16. There are two points which needed to be added to Clause 2, one being to alter the legislative competence of the Scottish Parliament and the other being to alter the executive competence of the Scottish Government. These matters are in practice the subject of a consent resolution or a Sewel convention Motion and should be referred to expressly in the clause to cover the reach of the convention. That is the point which the committee of the noble Lord, Lord Lang, was talking about.

Lord Lang of Monkton: I am grateful to the noble and learned Lord, Lord Hope of Craighead, for his comments about the word “normally”. It is not a word that alarmed me particularly, as a non-lawyer, but the clause as a whole certainly alarmed and concerned the Constitution Committee. I shall say something about that in a moment but “normally” in its location there seemed to strike the balance between permitting the Scottish Parliament to legislate on devolved matters without intervention from the United Kingdom Government while, at the same time, giving the Government of the United Kingdom the clear right and entitlement in special circumstances to intervene. I will be interested to hear what my noble and learned friend at the Dispatch Box will have to say about it.

My own Amendment 13 simply seeks to strengthen new subsection (8) of Section 28 of the 1998 Act by reasserting the supremacy of the United Kingdom Parliament to reinforce the terms of subsection (7), which subsection (8) might otherwise seem to contradict. Having heard the treatment given by the Front Bench to my noble friend Lord Forsyth’s amendments, I suspect that I may not be on an ideal wicket. But I want to say a word or two about this clause because the Sewel convention is a dangerous situation in which to legislate.

The Sewel convention is as slippery as a fish. It has changed throughout the years since it came into being quite considerably and may yet change again. When I was first asked about it, I was told informally by my late lamented noble friend Lord MacKay of Ardbrecknish, who was at that time our Front-Bench spokesman on the Bill, that it was really just a courtesy to the Scottish Parliament for the United Kingdom Parliament to offer to legislate on its behalf, if it was an issue being devolved to it on which it would plan to legislate. It would thus save time, expense and duplication. I do not think it was ever quite thus but that was the flavour of how I first understood it. It has now turned into something quite different and I see it as a weapon that seems to allow the Scottish Parliament to intrude into United Kingdom legislation to an unsafe extent, possibly even to the extent of a veto.

What is clear is that the Sewel convention is still so fluid and unsettled as not to deserve the name of convention. I do not think, in its present form, it is fit to be converted into law. It may be that those who have

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drafted the Bill have found, in the form of words they have used, a more stable and secure base for the long term, but the convention has changed a lot over the years and may again. Initially, the United Kingdom Government seemed to maintain that it applied only to powers already devolved or to restricting or diminishing such a power. That was certainly the original intention as I understood it, but in 2005,

Devolution Guidance Note 10

was published, which suggested:

“The convention applies when legislation makes provisions specifically for a devolved purpose”.

I see that as something much broader.

Since then, the Scottish Parliament has claimed it applies to devolved areas rather than devolved matters, so that it also applies to legislation increasing devolved powers, which the UK Government seem at times to have accepted. The Scotland Act 2012 bore this out, as it was almost entirely an empowering measure and was taken to require legislative consent Motions. Astonishingly to me, the Labour Opposition supported an SNP amendment in the Commons and tried to enshrine devolved areas into the legislation. That could have given the Scottish Government a veto on UK legislation, which is what prompted my question to my noble friend on the Front Bench at Second Reading. This one-way degeneration of the original purpose of the convention is potentially damaging to the sovereignty of the United Kingdom Parliament, and we have to exercise great care in handling this.

The Smith commission asked only that it be put on a statutory footing. Even if we can be confident of a clear, unambiguous wording, the potential troubles do not end there. My noble and learned friend Lord Hope indicated at Second Reading, as he will recall, that it could become challengeable in the courts. My noble friend Lord Norton had serious concerns also, pointing out:

“Clause 2 does not transpose the Sewel convention into statute. It simply states the convention”.—[Official Report, 24/11/15; col. 639.]

I am completely out of my depth in reacting to that and I look forward to his speech a little later in the debate.

My amendment echoes the concerns of others to counter the uncertainties generated by the present wording of the clause. We have all felt the need to reiterate, in every possible way, the need to reassert the sovereignty of the United Kingdom Parliament. My amendment is the simplest and shortest—it may not be the best but at least it has a different wording from that rejected by my noble friend on the Front Bench. We must have a wording that is clear and unambiguous and able to withstand challenge in the courts, where I suspect it will probably end up.

Lord Cormack: My Lords, I will speak briefly to the two amendments in my name, Amendments 14 and 18. I thank the noble and learned Lord, Lord Wallace of Tankerness, the noble Lord, Lord Stephen, and the noble and learned Lord, Lord McCluskey, for adding their names to Amendment 14.

I think we are all aiming for the same thing: clarity and the removal of ambiguity. The one thing that struck me when I was looking at the Bill for the first time was the use of the word “normally”. It is not a

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very good legal word; indeed it is a word that could, as those who know far more about the law than I do have said repeatedly, be challenged in the courts. In these two amendments, I have sought to remove that word entirely and to give, in Amendment 18, a specific exception. I do not suggest that this is the only answer or necessarily the best one. I listened carefully to what my noble friend Lord Lang said a moment or two ago, but I would delete “normally” and insert at the end,

“save in times of war or national emergency”.

It is accepted in the Bill that there could be occasions when the United Kingdom Parliament, which has absolute sovereignty, would need to override the Scottish Parliament. None of us wants that to happen—and certainly not often—but if we recognise that that can or could happen, we have to be a little clearer with our definitions. I believe that by removing “normally” and inserting a couple of specifics, we are moving in the right direction. It is in that spirit that I commend these amendments to your Lordships’ House.

6.45 pm

Lord Norton of Louth: My Lords, these amendments, on the whole, move us forward. They are an improvement on what is presently an unsatisfactory provision in the Bill. I drew attention to this at Second Reading, but in doing so I was hardly doing anything novel. Attention was drawn to the problem in the last Parliament by the Political and Constitutional Reform Committee in the other place and by the Constitution Committee of this House. The point was made that this did not even put the Smith commission recommendation in statute. The commission recommended putting the convention on a statutory footing, but the clause as drafted does not do that; it merely takes the words of Lord Sewel and puts them into the clause. It does not provide legal certainty. We are in an unusual position; indeed, this has not happened before. Conventions have been transposed into statute previously, but once in statute, the convention is dead and the statute provides legal certainty.

What we have here is an attempt to provide something in statute while retaining the flexibility of the convention —which basically carries on as a convention. We have to make a decision: either it is a convention, in which case it is not in statute and we just carry on as before—the convention is widely accepted for what it is and is not really in doubt—or we actually put it in statute so that we have legal certainty and clarity, and it is not then likely to come before the courts. The problem with the wording at the moment is that there is that possibility. One could remove “normally”, which would be a major step forward; or we could go with Amendment 12, which the noble and learned Lord, Lord Hope of Craighead, has put forward and which I have put my name to, because it provides legal certainty.

If the Government want to retain the flexibility of a convention, there would have to be some additional provision stipulating quite clearly any exceptional circumstances. That could be, for example, through Amendment 18, in the name of my noble friend Lord Cormack, which does stipulate those circumstances. One might have to take that further in defining what constitutes a national emergency, but it does refine the provision. Either the Government accept an amendment

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like that or they have to come up with their own. They could accept Amendment 12 and, if they wish, qualify it, but the onus is on the Government. However, I am quite clear that we really cannot proceed with Clause 2 as presently worded. As I say, either we have a convention or we have legal certainty in statute. I do not think we can try to have both.

Lord McCluskey: My Lords, I was happy to add my name to Amendment 14 in the name of the noble Lord, Lord Cormack. People keep apologising for not being lawyers, but I think it is time a lawyer apologised for being a lawyer. I am a lawyer and I want to say this. It is commonly said by judges up and down the country that words in a statute should be like a piece of crystal—absolutely clear and unambiguous. They should be clear, unambiguous and definitive, but the word “normally” has no fixed meaning at all. I looked it up in a number of dictionaries. In one, the first definition of “normally” was “rectangular”—I do not know where that takes us.

We use a lot of elastic words from time to time, such as “reasonable”, “appropriate”, “usually” or “a piece of string”. There is no clear meaning or definition to these words, but the difference between a word in a statute and a convention is that, as the noble Lord, Lord Lang, said, a convention is fluid and flexible. You can develop it all the time in the light of experience—qualify it, extend it and so on—but you cannot do that with the words of a statute. My problem is that I do not know what a court would make of the word “normally”.

Lord Foulkes of Cumnock (Lab): Could the noble and learned Lord tell me what “normally” normally means?

Lord McCluskey: That depends on the context in which it is used. Normally, “normally” means “usually”—but “norm” means a standard and the main definition in some dictionaries is of conforming to a standard. I cannot understand with regard to devolved matters of legislation what the standard would be. That is why I tabled Amendment 19. If you leave in “normally”, in effect the decision on whether the circumstances are such as to allow the Parliament of the UK to legislate is one for that Parliament to take. That is the first point. In other words, I do not care who decides it, but someone must decide it.

If you do not decide it in this sort of way—namely, by giving the job to a Parliament—you will leave the job to a court. I have no idea what a court would make of the word “normally”. How would a court judge what is normal in the context of devolved and other legislation without hearing evidence? Must a court then hear a lot of evidence from constitutional experts, who are unlikely to be unanimous if today’s proceedings are anything to go by? They are not unanimous and I do not think a court would be able to rule on the matter without hearing evidence. I would hate to see the courts having to deal with this kind of matter, albeit that it would be a bonanza for lawyers—of whom I confess to being one.

The Duke of Montrose (Con): My Lords, I support my noble friend Lord Lang in what he said. The wording of this clause reflects what I understood that

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Lord Sewel said in this House at the time of the passing of the Bill. It says that,

“the Parliament of the United Kingdom will not normally legislate with regard to devolved matters”.

When that was said before, I think that all of us here—my noble friend Lord Lang reinforced this—thought that it referred to Schedule 5, non-devolved matters, so that a Sewel Motion would be needed for anything discussed in this House outwith Schedule 5.

I have watched over the years as this matter has gradually crept out. The noble Lord, Lord Stephen, mentioned the various steps along which the Civil Service has progressed in making this convention. It was always a fairly constitutional matter and they were chipping away at what we understood could or could not be discussed. To just leave the wording as it is tells only half the story. We must find out what exactly the convention has developed into and what wording would describe it if we want to have it as either a convention or whatever it is. At least we have it on the Floor of the House now and can begin to look at what it should be.

Having seen the wording when the Bill was published, I asked a Written Question of my noble friend the Minister. I asked,

“how many times the Scottish Parliament has passed a legislative consent motion … regarding matters that were not at that time devolved under Schedule 5 to the Scotland Act … and in each case what reason was given”.

The Minister kindly replied with one example, but I think there must be many more. His example was that,

“section 10 of the Scotland Act 2012 made provision for certain elements in relation to air weapons to be within the legislative competence of the Scottish Parliament”,

the argument being that things that were about to be devolved should be subject to a legislative consent motion. We need to know exactly how far this goes and what its meaning will be.

Lord Forsyth of Drumlean: My Lords, I will speak briefly to support my noble friend Lord Norton’s remarks and the amendment of my noble friend Lord Lang. I will not go through all the arguments about sovereignty again because we have done them to death. I will also speak to Amendment 17, which for some reason was put in an earlier group. I tabled it as a probing amendment but having listened to the debate I really think my noble friend needs to go back to the drawing board on this. It surely makes sense to put into statute the Sewel convention and then abandon it as a convention, as we discussed earlier. Of course, when we discussed English votes for English laws, I predicted that by giving the Westminster Parliament an English veto on legislation it would be only a matter of time before people argued that there ought to be a Scottish veto, as the noble Lord, Lord Stephen, did in the context of the Sewel convention.

What my noble friend Lord Norton said was very wise. We need to work out what this convention means and we need to put that in the Bill in a way that is apparent. To reassure the noble Lord, Lord McAvoy, who worries about how this will be seen by nationalists north of the border and that some people are trying to refight the battles of 1997, I see no reason why we should not just cut this Gordian knot and leave the Scottish Parliament to legislate on all devolved matters.

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What happens is that it piggy-backs on legislation that is carried down here and then finds it very convenient to blame Westminster for passing the legislation to which of course it was a party.

This Bill hands a huge new set of powers to the Scottish Parliament, with huge new responsibilities. The whole purpose of the Bill is apparently about making the Parliament accountable to the Scottish people. Well, why not let them get on with passing the legislation necessary to meet their responsibilities? I think that the Sewel convention should be toughened up. It should be made stronger and should basically provide that the Parliament of the United Kingdom will not legislate with regard to devolved matters. It is up to the Scottish Parliament. Why would we wish to do so?

Lord Maxton: I am trying to follow the noble Lord’s arguments carefully but it seems that, even with the new powers that we should be or are giving under this legislation, there will still be matters for instance in transport where we might pass legislation that will affect Scotland. I travel on a train from Euston up to Glasgow every week and back down every Monday. That is partly covered by transport legislation from this House. Is the noble Lord saying that once it crosses the border it should then be covered by legislation for Scotland?

Lord Forsyth of Drumlean: Well, devolution was not my idea but that seems to be what it means. You cannot have it both ways. Presumably, if we were bringing in legislation that would affect the noble Lord’s travel across the border there would be the normal consultation process. My argument is: what is wrong with letting the Scottish Parliament get on with passing the necessary legislation? If it is a devolved matter, it is a matter for the Scottish Parliament. Then we do not have a problem with the Sewel convention. Provided we retain the sovereignty of this Parliament, there is nothing whatever to stop us passing legislation in times of emergency, war or whatever else that could apply. In the Bill as presently constituted, this word “normally” is fine for a convention but ridiculous for a statute.

Having argued that this should be set down properly in the Bill, explaining how it will work as a matter of statute and not as a convention, if we were to retain the convention and were looking at what the convention would be that we sought to enshrine in statute, I would say that it is recognised that the Parliament of the United Kingdom will not legislate with regard to devolved matters. It is entirely up to the Scottish Parliament, if it wishes us to legislate, to argue for the contrary.

Of course, the great irony in this—as the noble Lord, Lord Gordon of Strathblane, indicated—is that we are legislating on a monumental scale now in this Bill without the consent of the Scottish Parliament. There is the distinct possibility, as we still do not have the fiscal framework, that the consent of the Scottish Parliament might not be forthcoming and that we might have to do it all over again. So there is a thought.

My noble and learned friend needs to look at these amendments and think about them and come back with a clause in statute that actually defines what the Government believe that the Scottish Parliament and

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the Westminster Parliament should do with—in the words of the noble and learned Lord, Lord McCluskey—absolute crystal clarity, so that we do not have this business of blaming Westminster any longer for legislation that was covertly supported by the Scottish Parliament. If it has that responsibility, it may very well find, as the Westminster Parliament does, that it has to be discriminatory about what it wants to put on the statute book—and it may very well find that it is no longer able to get away with sitting for a mere one and a half days a week.

7 pm

Lord Davidson of Glen Clova: My Lords, there has been a widespread and interesting debate on this very important area of legislation. The noble Lord, Lord Norton, said that the debate had been useful to move matters forward, and I respectfully agree. It has provided the Minister with a smorgasbord of possibility.

The noble Lord, Lord Stephen, is correct in identifying the utility in having clarity where the UK Government may or may not have power where legislative consent Motions may come into being. That is quite clear. The alternative that is proposed by the noble and learned Lord, Lord Hope of Craighead, is a carefully laid out analysis of what the actual problem has been and how it may be converted into statute. If one is going down the route of statute rather than maintaining convention in place, this appears a helpful and clear way forward.

The fact that the executive competence of the Scottish Parliament comes into play is a matter that has troubled people from time to time. One example might be the position of Scottish law officers. In Scotland, Ministers are in charge of day-to-day management of prosecution. Some people might think that that was anomalous. In fact, had the noble and learned Lord, Lord Wallace of Tankerness, been here this evening—he is in a more illustrious place—he would recollect saying many years ago that the position of the Scottish law officers in being prosecutors and Ministers was anomalous. Those are the sort of issues that with this approach are clearly put back into the Scottish Parliament to be dealt with by either the Parliament or the Scottish courts.

As for the problems that have arisen when legislative consent Motions have been deployed, they have in fact worked extremely well over 15 years. The notion that in some way they have subverted the sovereignty of the United Kingdom and this Parliament is, I would suggest, somewhat of a chimera. As the Minister has already indicated on a number of occasions, the sovereignty of this Parliament has not been subverted, and is not subverted. So on the notion in the amendment proposed by the noble Lord, Lord Lang of Monkton, that sovereignty should be made absolutely clear, on this side of the House we would accept what the Minister has said repeatedly—and we have that before us, if we look at Pepper v Hart—that this Parliament remains sovereign.

On the vexing question of the word “normally”, we support its deletion. We appreciate that the word, despite the helpful guidance from the noble and learned Lord, Lord McCluskey, is not easily understood in applying matters of statutory interpretation. The noble and learned Lord, Lord Mackay of Drumadoon, was a witness and saw the uttering of the legislative consent

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words, and he very helpfully set out that words can appear without necessarily having the fully considered import that a draftsman might bring to bear. The noble Lord, Lord Empey, made the point very clearly in the context of Northern Ireland. So although it may be thought by some, possibly, that deletion of “normally” is in fact an extension of legislative consent, we on this side would support it. If it is seen as in some way increasing a fetter on Ministers, so be it in order that clarity might be produced.

We oppose Amendment 18 advanced by the noble Lord, Lord Cormack, on the basis that we see that the UK remains the UK. If there is war or a national emergency, the constituent parts of the United Kingdom can be relied on to pull together. We also oppose Amendment 17, proposed by the noble Lord, Lord Forsyth of Drumlean, perhaps unsurprisingly. The legislative consent Motion procedure has been successful over 15 years; either of the amendments proposed, setting out the statutory basis of the legislative consent Motion, would resolve the issue but there has not been a debate about this being an unsuccessful mechanism. It has worked not as a way in which to pose the Scottish Government against Her Majesty's Government but, most of the time, has resulted in co-operation, with the Scottish Government bringing issues to Her Majesty’s Government for discussion.

Lord Forsyth of Drumlean: Has the noble and learned Lord not seen the statements made by senior Ministers in the Scottish Government to the effect that, if they do not get what they want out of the fiscal framework, they will veto the legislation and prevent it coming on to the statute book. I am not sure how, given the importance of this legislation and the background to it, the noble and learned Lord can say that the system is working perfectly well.

Lord Davidson of Glen Clova: The noble Lord will of course be aware that I have seen those statements and have been interested in what they in fact mean. But he will also recollect that we say, from this side of the House, that given the discussion about the fiscal framework and possible use of legislative consent Motions in that regard, we see the co-operation that has taken place between the Scottish Government and Her Majesty's Government in the past as something in which we can repose a good deal of trust that it will continue in relation to this process with the fiscal framework. Our trust may be misplaced, but we conceive otherwise. The noble Lord, Lord Forsyth, cannot see any more than I can into the future, but we are in a position where we repose trust in the process, at least from this side.

In relation to the various amendments before the House, we accept that a number of them are useful. None the less, we oppose Amendments 13 and 18.

Lord Hope of Craighead: I hoped that the noble and learned Lord might say something about Amendment 20. Perhaps I was not sufficiently clear when I introduced these amendments, but Amendment 12 deals with the stage of passing a Bill and says that,

“the Parliament of the United Kingdom may not pass Acts … without the consent of the Scottish Parliament”.

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Amendment 20 intercepts the matter at the earlier stage. It says:

“A Minister of the Crown must not introduce a Bill into the Parliament of the United Kingdom … that would make provision applying to Scotland unless a Minister of the Crown has consulted the Scottish Ministers”.

That amendment, as in the case of Amendment 12, was drafted in Edinburgh by people who know how the system is working. In giving his support to Amendment 12, I wonder whether the noble and learned Lord meant to give his support also to Amendment 20.

Lord Davidson of Glen Clova: I apologise for not confirming that we support Amendment 20. I took that as being the overall approach—this smorgasbord—between the approach of the noble Lord, Lord Stephen, and the approach of the noble and learned Lord, Lord Hope. I hope that clarifies the point.

Lord Mackay of Clashfern: What is the noble and learned Lord’s view about the provisions in Amendment 12, which was tabled by the noble and learned Lord, Lord Hope? It contains paragraphs (a), (b) and (c). Paragraph (a) applies to Scotland and does not relate to reserved matters. I would have thought that is what is meant by devolved matters, but paragraphs (b) and (c) considerably add to that. As far as I can understand them, particularly paragraph (b), they would apply to this legislation.

Lord Davidson of Glen Clova: Perhaps I can try to explain the proposition put forward by the noble and learned Lord, Lord Hope, in his amendment. As we see this, it reflects the reality of the way in which legislative consent Motions have been used over the 15 years, beyond the original.

Lord Keen of Elie: I am obliged for the contributions that have been made with regard to Clause 2 and the proposed amendments thereto. I shall begin by making an observation on a point made by the noble Lord, Lord Stephen, with regard to English votes. The provision with regard to English votes does not limit the sovereignty of this Parliament in any sense. English votes introduces the principle of English consent for English measures. The new procedures maintain the important principle of Members of Parliament from all parts of the United Kingdom being able to deliberate and vote on all legislation. Members of Parliament are not excluded from the legislative process. I would not accept the proposition that these provisions somehow derogate from the sovereignty of this Parliament.

Lord Stephen: Does the Minister accept that the House of Commons could pass something and the House of Lords could agree with that proposal but it could then be vetoed by the subgroup of the House of Commons who are defined as English Members of Parliament?

Lord Keen of Elie: I am not quite sure about the use of the term “veto”.

Lord Stephen: Would the Minister prefer “block” or “prevent being enacted”?

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Lord Keen of Elie: It merely means that in respect of matters that are English measures, there must be an element of English consent, but I do not accept that that derogates from the sovereignty of this Parliament. In due course, this Parliament might decide to legislate contrary to those provisions.

Lord Forsyth of Drumlean: While it is true that legislation still requires the consent of both Houses, EVEL gives a group of Members of the House of Commons who are English MPs the ability to veto a provision so that it proceeds no further. I think that is the point that the noble Lord is making.

Lord Keen of Elie: The term “veto”, if you wish to employ it, is there. It means that English measures require the consent of English Members, but it does not derogate from the sovereignty of this Parliament.

Clause 2 delivers paragraph 22 of the Smith agreement which sets out quite clearly that the Sewel convention will be put on a statutory footing. As with Clause 1 on permanence, the Smith commission agreement did not intend that the constitutional position should be changed, but that legislation should accurately reflect the position that already exists and has existed for 15 years.

I shall put this into context. Section 28(7) of the Scotland Act 1998 makes it perfectly clear that this Parliament can legislate in respect of Scotland in all matters, including devolved matters. It preserves the sovereignty of this Parliament.

The Duke of Montrose: When the Minister talks about the Sewel convention as it has been for 15 years, that does not include the various modifications that have been introduced in the 15 years. The Government will have to be careful about how they describe it.

7.15 pm

Lord Keen of Elie: I am obliged to his Grace. That does not, and that is why the convention is expressed as it is in Clause 2. There has been Devolution Guidance Note 10 with regard to how from time to time the convention may operate, but those are working arrangements which may alter from time to time and should not be enshrined in statute. That is not considered appropriate. That is why Clause 2 is in the terms in which it is found—because it reflects paragraph 22 of the Smith commission agreement.

My understanding of why the Sewel convention came to be expressed as it was is that Section 28(7) of the Scotland Act allows this sovereign Parliament to legislate, notwithstanding the terms of the 1998 Act, in respect of all matters pertaining to Scotland. There was, I apprehend, concern that if, for example, in a devolved area of competence, such as education or health, the Scottish Government got into serious difficulty, this Parliament might be open to the criticism that it had done nothing about it, even though it reserved to itself the power to legislate for Scotland on devolved matters in terms of Section 28(7). Therefore, the convention was expressed that normally this Parliament will not legislate for Scotland in devolved areas. That was expressed in those terms in order that this Parliament would not face criticism that it had done nothing as the health or education service in Scotland had

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deteriorated in the face of legislation from the devolved Parliament. That is the background to the introduction, as I understand it, of the Sewel convention. It works both ways.

Lord Forsyth of Drumlean: I am most grateful to my noble and learned friend. Does that mean that as the number of passes being achieved by school leavers since I left office back in 1997 has fallen by 20% compared with England, there is still the possibility that we might intervene in the hash that is being made of the education services by the present Government in Scotland? I assumed that the answer to that question would be absolutely not, so what is my noble and learned friend getting at?

Lord Keen of Elie: The point is that in terms of Section 28(7) we in this Parliament could, on the face of it, intervene in such a matter. That was the whole point of the convention: to make it clear that normally we would not do so. I may have misunderstood the intervention of my noble friend Lord Forsyth but, with respect, it seems to me that that is precisely why the Sewel convention was expressed in the terms in which we find it—so that if educational attainment in Scotland was failing we would not be faced with the criticism that the United Kingdom Parliament had done nothing about it because conventionally we would not normally intervene in a devolved matter, but we retain sovereignty and we have the right to do so. That is why the Sewel convention is expressed in the manner in which it is. The intention is not that Clause 2 should give rise to any justiciable issue. It is a political expression of the convention in statutory form. That is why the term “normally” appears within Clause 2. It makes it clear that this is not a justiciable issue. It is quite clear that in terms of the Smith commission agreement the Sewel convention will be expressed in statutory terms. It is there, but whether this Parliament would consider it appropriate to legislate for Scotland in a devolved area, which it can do pursuant to Section 28(7) of the Scotland Act 1998, is a political issue. It would not be for a court to decide what “normally” meant in that context. It would be a political issue. If it could be litigated in court and made justiciable, the question would be: what possible remedy could the court provide other than a political one? That is why it takes us back to the simple proposition that Clause 2, as set out, would not give rise to a justiciable issue. I give way to the noble and learned Lord, Lord Hope.

Lord Hope of Craighead: The problem is that paragraph 22 of the Smith commission report states that the Sewel convention will be put on a statutory footing. Rather like the noble and learned Lord, Lord McCluskey, I wondered what “statutory footing” meant, and I went to various sources to find out. A translation of it is fairly obvious: it means being put on a firm footing by being written into statute. That raises the question of what the effect is of writing something into statute.

The problem is that, whatever the Minister may say, someone seeing it written into statute is going to say, “Here is something which I can use to challenge a piece of legislation that is apparently being passed

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without the Sewel convention being observed according to its current usage”. With great respect, it does not do for a Minister to say to the court, “This is just a political matter”, because the judges will say, “It’s a matter for us”. The judge may look at the normal rules to see what the legislation was designed to do, and with a bit of research they will find that it was designed to give effect to the Sewel convention to put it on a statutory footing. The judge will then say, “Well, it’s a matter for me to construe what this means”. I am not at all impressed by the Minister saying that it is all a political matter, because it is now in the hands of the court to adjudicate upon.

The Minister asks, “What remedy does that give rise to?”. It creates uncertainty about the effectiveness of legislation. One of the things that we have to be very careful about is that the legislative process is well founded and not open to challenges, except those that are already subject to legislation in the Scotland Act. So, with great respect, it is necessary to warm the Minister that he cannot get away with assuming that the judges will accept that it is simply a political issue; it is not that at all, once it is written into statute.

Lord Keen of Elie: The noble and learned Lord acknowledges that there would be no remedy other than a political remedy in that context, or appears to do so. He shakes his head; nevertheless, there is no remedy except a political remedy. This underlines the importance of the words “recognised as” and “normally” where they appear in Clause 2.

However, the noble and learned Lord, Lord McCluskey, spoke to his Amendment 19, a proposal that it should be expressly stated that the clause is not justiciable and does not give rise to justiciable rights. That is a matter that I would be pleased to discuss with him, albeit that the Government’s position at present is that there is no requirement to expressly state that in the context of a clause that, on the face of it, is implicitly not justiciable. That would be my position on Amendment 19.

Lord McCluskey: On that point, this provision can be put in to render the matter not justiciable, but that is in the context that the decision would in fact be taken by the UK Parliament and that decision could not be challenged in court. The point about the Sewel convention, which the Minister says is being enshrined in legislation, is that the effect changes entirely because the Sewel convention was not justiciable at all, as I understand it, whereas the statute is always justiciable. The court cannot say, “We don’t want to give it a meaning”; the court has to find a meaning because it always has to answer the question before it.

Lord Keen of Elie: In that context, it would be declaring that this is a clause that gives rise to only a political remedy, and that it was not for the court to intervene and determine whether a particular piece of legislation was normal or abnormal. That would not be an issue for the court, and that is the position of the Government with regard to the clause. That could be made clearer, or could be made express, but, as I say, I would be happy to discuss that in the light of the noble and learned Lord’s proposed amendment.

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Lord Cormack: If the Minister is prepared to have those discussions, which are welcome, would he also be prepared to have a discussion with those of us who have signed the amendments to delete the word “normally”? I say very gently to him—echoing someone who should not be echoed in this Chamber, Cromwell—conceive it,

“possible you may be mistaken”.

Lord Keen of Elie: I would respond to my noble friend by saying that anything is possible.

Lord Scott of Foscote: The debate at the moment seems to be concerned exclusively with primary legislation. Clause 2 is concerned with primary legislation made by Parliament, but the bulk of legislation these days is made by statutory instrument—made under powers that are granted by Parliament, of course, and many of these are existing powers—but I cannot see anything in the Bill that really grapples with the position of statutory legislation as opposed to primary. I wonder if that is an oversight or whether it is intended.

Lord Keen of Elie: If I may, I shall respond to the observations from the noble and learned Lord, Lord Scott, after the dinner break. I confess it is not immediately apparent to me what the thrust of his point was, and maybe I am missing it, but I shall give it some consideration.

Lord Lawson of Blaby: If the Minister will allow me, those of us who are not as expert as he is are getting a little puzzled. Can he help the House by giving practical examples of the sort of circumstances in which the UK Parliament would legislate on devolved matters? A few such examples would be helpful for us to understand precisely what this is getting at.

Lord Keen of Elie: In a sense, this is connected to my earlier observation that at the end of the day the clause is not justiciable. It will be for Parliament at the time to decide that it is or is not going to legislate for Scotland in a devolved matter. The term “normally” means “usually” or “generally”, but Parliament at the time may decide that it is going to legislate for Scotland in respect of a devolved matter. There is no limit on that power, as is expressly provided by Section 28(7) of the Scotland Act 1998. There is no limit on this Parliament’s sovereignty and supremacy in respect of that matter. The Sewel convention merely says that normally it will not do so; that is all.

Lord McCluskey: Does the Minister realise that if the UK Government decide that the situation is abnormal and therefore decide to legislate, and the Scottish Government go to a Scottish court and say, “We don’t agree with the judgment about normality”, the court will have to make a judgment about that if the word “normally” remains in the wording. There is no mechanism for that other than the court having to sit down and decide what it thinks Parliament intended when it used the word “normally”.

Lord Keen of Elie: With respect to the noble and learned Lord, Lord McCluskey, I do not accept that proposition. It would be for the court to say that

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Parliament decides whether it is normal to legislate for Scotland in a devolved matter. It is not for us to interrogate that decision by Parliament. “Normally” means just that—no more, no less. It is not for the courts to say, “We don’t think the situation was abnormal”. That is a political decision.

Lord McCluskey: My Lords—

Lord Keen of Elie: I will not accept an intervention this stage.

Lord Foulkes of Cumnock: Then get on with it.

Lord Keen of Elie: I am obliged to the noble Lord, Lord Foulkes.

Lord Purvis of Tweed: Will the Minister give way?

Lord Keen of Elie: In view of the time, no.

Amendment 11 would clearly impact on the ability of the United Kingdom Parliament to make laws for Scotland. To that extent, it would modify Section 28(7) of the 1998 Act. The effect of that amendment could be interpreted as an attempt to limit the sovereignty of this Parliament, a point that I believe the noble Lord, Lord Stephen, acknowledged, and the Government would not be prepared to accept such an amendment.

Amendment 13, conversely, seeks to state in the Bill that Clause 2 places no limits on the sovereignty of Parliament. We would say that if you say that expressly in one part of the Bill, you have to take care as to the impact that it will have on other parts of the Bill, and that it is appropriate to acknowledge that nothing in the Bill impinges on the sovereignty of Parliament.

7.30 pm

I have mentioned the issue of justiciability and the express provision proposed by the noble and learned Lord, Lord McCluskey. As I indicated, I will be prepared to discuss that matter with him. With regard to Amendments 12, 15, 16 and 20, I will make the following short point. They go well beyond the Smith commission agreement, and the intention of the Bill is to deliver the Smith commission agreement—no more, and most certainly no less. Therefore, we will not accept those at this time.

With respect to Amendments 12 and 20, which were originally put forward by the SNP, again, we do not accept those for the reasons I have already commented upon. We submit that the word “normally” is very material in the context of the justiciability or otherwise of this clause. So far as the further amendment is concerned, it would have the effect of limiting the ability of the United Kingdom Parliament to make provisions applying to Scotland, even in reserved areas, therefore it cannot be accepted.

Finally, I will touch upon Amendment 17, tabled by the noble Lord, Lord Forsyth. I simply say that if that amendment was accepted, it would not be possible, as he indicated himself, for this Parliament to make legislation for Scotland in devolved areas, even with

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the consent of the Scottish Parliament. Over the last 15 years, the mode of working between the two Parliaments has been such that they have collaborated repeatedly on the matter of legislation promoted in this Parliament and extending to Scotland in devolved issues. Indeed, it happened as recently as the Serious Crime Act 2015. It is therefore of benefit to both Parliaments that this should happen. I cannot comment upon the observations that some Ministers of the Scottish Government have made with regard to the working of that operation but I urge your Lordships not to press these amendments.

Lord Forsyth of Drumlean: My Lords, before my noble friend withdraws his amendment, can I ask my noble and learned friend a question, as he would not accept an intervention? We are in Committee. I am not a lawyer, but earlier in our discussions I gave the example of where the Scottish Government have fallen down on education in the context of his remarks that we retain the right to pass legislation on education, health or other matters where we feel that they are falling down. I put that forward as a debating point, but in circumstances where a Government, perhaps led by me, decided to do this, it would be outrageous if it was a political decision to intervene on an education matter based on a belief that the Scottish Government —an elected Government—were not doing their job. Therefore, if I were on the other side, leading the Scottish Government, I would go straight to the courts and say, “This word ‘normally’ does not provide for the kind of intervention which is being provided”. I do not understand why my noble and learned friend says that the courts would not take a view of what “normally” meant, and in fact, in this case, if I were the judge I would say, “Actually, ‘normally’ means ‘exceptional’”, but they may take a different view. That is what is causing the concern among the lawyers. However, in common sense terms, to have a word such as “normally” and to argue that there would not be judicial challenge and that, if there was, the courts would just walk away from it, cannot be right. Can my noble and learned friend explain why I am wrong?

Lord Keen of Elie: I do not accept the proposition that my noble friend Lord Forsyth advances. The position is that this Parliament is sovereign; in terms of Section 28(7) of the 1998 Act it may legislate for Scotland in all and any matters, including devolved matters. The Sewel convention simply expresses the view that this Parliament will not normally do so. However, that does not fix some black-line test to be applied by the courts as to what is normal and abnormal; it will be a matter for Parliament going forward to decide if or when it would ever legislate for Scotland in respect of a devolved matter.

Lord Norton of Louth: My noble and learned friend’s argument was that the Bill puts into statute the recommendations of the Smith commission, and in this case, recommendation 22:

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

Surely on his own argument the Government will have to withdraw Clause 2, not only on the grounds of what constitutes a statutory footing but because it embodies the words of Lord Sewel, which he spoke when the

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Scotland Bill was before Parliament, and not the convention as understood at the time the commission produced its report.

Lord Keen of Elie: I do not accept that, because it appears that what is understood by the Sewel convention is the expression of that convention by Lord Sewel during the passage of the Scotland Act 1998 through Parliament. I indicated before the sundry working arrangements that developed and changed over the passage of the 15 years after that convention came into place, such as DGN10, which is why there is no attempt, and properly so, to express those working arrangements in statutory terms within the Bill.

The Duke of Montrose: Can the Minister say whether that means that there will be a new convention that includes those elements?

Lord Keen of Elie: It may be that further working arrangements will develop as between the two Parliaments with respect to legislation that touches upon devolved matters. However, the provision as expressed in the Bill is simply that as expressed by Lord Sewel at the time the Scotland Act passed through Parliament in 1998. It merely says that while in terms of Section 28 we have the power to legislate for Scotland in all matters, including devolved matters, we will not normally do so.

Lord Stephen: As noble Lords will know, the Liberal Democrats are very supportive of the Bill, but the explanation just given by the Minister of the Sewel convention and the issues around it worries me greatly. From the outset, I say that I strongly support the amendment in the name of the noble Lord, Lord Cormack, which would leave out “normally”. It seems that much of the Minister’s argument about protecting the sovereignty of the UK Parliament hangs on retaining the word “normally”, because that then gives the UK Parliament very wide discretion, as I read it, to legislate, as the Minister explains it, in areas that could include education, transport, housing, health and all the issues that are the very stuff of the Scottish Parliament. If that is the Minister’s intention, that is hugely controversial. I will say no more than that, because I do not want to develop this issue into a major argument on these points.

However, let me be clear. Back in 1998, when the Sewel convention was introduced, it was not in any circumstances with a view to this Parliament stepping in to legislate in the areas of transport, health and education if the Scottish Parliament was to make a mess of it. That was absolutely not the reason why it was introduced. Its wording and the reasons for its introduction are quite clear; they are here in Clause 2, which says that,

“it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

Therefore, even by the Minister’s own explanation, the consent of the Scottish Parliament to legislate in these potentially controversial areas would be required, and it would not happen. There is no way that the Scottish Parliament, in terms of the Sewel Motion as it went back to 1998, would cover legislation in health and education—

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Lord Davidson of Glen Clova: I have a feeling that the Committee is going down the wrong line here. The Minister has made it entirely clear that he has been talking about something that would never happen. It is just a logical construct. He is looking into the reality, and the notion that one should feel that somehow the UK Parliament is asserting a power to intervene in the affairs of the Scottish Government is a flight of fancy—it is not real.

Lord Stephen: I will readily grab that escape route, and I thank the noble and learned Lord for that assistance. I hope that that is the case, although much has been repeatedly made of the absolute sovereignty of the UK Parliament. If noble Lords check the record, they will find that the Minister has mentioned it many times.

However, moving away from that issue, I strongly agree with the noble Lord, Lord Norton. You either keep the convention or you enshrine it in statute—I think that the wording from the Smith commission was “put it on a statutory footing”. It was not the Sewel convention of 1998 that was expected to be put on a statutory footing; it was the Sewel convention as it exists today, as the Smith commission knows it and as it has been working in the Scottish Parliament and between the UK Government and the Scottish Government. All aspects of the Sewel convention should be on a statutory footing, not just one narrow aspect that started in 1998 and has now gone. If we were forced to go in that direction, then, as the noble Lord, Lord Norton, pointed out, one tiny but important element of the Sewel convention would be in statute but not all the rest. To me, that would be ridiculous.

As ever, the noble Lord, Lord Forsyth, is logically correct: any Sewel Motions and legislative consent Motions could absolutely be prevented, with everything in devolved areas having to be dealt with by the Scottish Parliament. The UK Parliament—the House of Commons and the House of Lords—would stop legislating in these areas. However, I conclude by saying that the whole process of legislative consent Motions has been accepted and they have been commonplace. Some people have asked how often they have been used. They are used all the time in the Scottish Parliament. There must have been dozens, if not hundreds, of legislative consent Motions. They work well. Why try to stop or change something that has been accepted and works well? Let us simply put it on a statutory footing and get on with it. I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendment 12

Tabled by Lord Hope of Craighead

12: Clause 2, page 2, leave out lines 5 to 7 and insert—

“(8) But the Parliament of the United Kingdom may not pass Acts applying to Scotland that make provision about a devolved matter without the consent of the Scottish Parliament.

(9) A provision is about a devolved matter if the provision—

(a) applies to Scotland and does not relate to reserved matters,

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(b) modifies the legislative competence of the Scottish Parliament, or

(c) modifies the functions of any member of the Scottish Government.

(10) In subsection (8), “Acts” includes any Act, whether a public general Act, a local and personal Act or a private Act.”

Lord Hope of Craighead: I am bound to say that I am very troubled by this whole matter and we will have to return to it on Report. Leaving the clause in its present form is bound to create instability—for reasons that I need not expand on further. Having given notice that I will come back to this on Report, I do not intend to move the amendment.

Amendment 12 not moved.

Lord Scott of Foscote (CB): My Lords, I wanted to say a word about Amendment 12.

The Earl of Courtown (Con): My Lords, we had the opportunity to speak to this amendment in a previous grouping.

Amendment 13 not moved.

Amendment 14

Tabled by Lord Cormack

14: Clause 2, page 2, line 6, leave out “normally”

Lord Cormack: I give notice that I will return to this on Report.

Amendment 14 not moved.

Amendments 15 to 20 not moved.

Clause 2 agreed.

House resumed. Committee to begin again not before 8.45 pm.

Vulnerable Children: Kinship Care

Question for Short Debate

7.43 pm

Asked by Baroness Armstrong of Hill Top

To ask Her Majesty’s Government what assessment they have made of kinship care as a means of support for vulnerable children.

Baroness Armstrong of Hill Top (Lab): My Lords, I welcome and appreciate the opportunity to have this debate. I thank all noble Lords who are interested in this issue and have indicated that they want to speak tonight. During our deliberations on the Welfare Reform and Work Bill last night, we had a useful debate on the challenges for kinship care that will arise from some of that legislation. I hope that the Minister has had the opportunity to read the comments in that debate, because I am not sure that tonight we will manage to get in all the points that we want to make.

I am very grateful to the Kinship Care Alliance for its briefings and, in particular, to the Family Rights Group, which I know and have worked with for several years and for whose knowledge and commitment in this area I have immense respect and regard.

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There are an estimated 200,000 kinship carers across the United Kingdom. They are grandparents, older siblings, other relatives and friends who step in to care for children when usually the only alternative is the care system or for them to become what we now call looked-after children. In England, kinship care remains the most prevalent form of non-parental care for children who are unable to live with their parents—and that may well be the case for the whole of the United Kingdom. The most recent figures that we have come from a report from Bristol University published earlier this year.

Despite kinship care still being the predominant option for children in England who are unable to live with their parents, and despite research evidence that children living in kinship care have better outcomes—certainly than those fostered by non-relatives and, it seems from the evidence, than any other form of looked-after child—the results of the University of Bristol study show that a large number of children in kinship care are affected by poverty and deprivation. More than three-quarters of the children in the study lived in a deprived household. As I said last night, we may have arguments across the Floor about what deprivation is and what levels of poverty are and so on, but from this work we know that many of these children are in families that do not have the resources, or access to the resources, that many of us take for granted.

Compared with children growing up with at least one parent, children in kinship care were nearly twice as likely to have a long-term health problem or a disability that limited their day-to-day activities. We know that a kinship carer often takes on far greater challenges than they would if they were simply about to give birth to their own child. Someone else’s child is likely to be older and will bring with him or her much of the trauma of whatever has gone wrong or whatever has happened in their early life.

So we know that the outcomes for children are better than the alternatives in the looked-after system, but we also know that life is still very tough for the vast majority of families where kinship care is the reality. The challenge to the Government is to see what they can do to encourage kinship carers to come forward when children in their family need care for whatever reason. The challenge is also to ensure that they are properly supported so that they can improve even more the outcomes for the children they are caring for.

Earlier this year, the Family Rights Group, along with others in the Kinship Care Alliance, carried out the largest survey of kinship carers that has ever been done. The survey showed that almost half of kinship carers had to give up work in order to fulfil their caring responsibilities, and a further 18% had to give up work temporarily. Sometimes the social worker would demand that they gave up work because the needs of the children were so great. I do not criticise anyone for that; it is simply the reality. Twenty-two per cent of kinship carer households had three or more children aged 18 or under, which is particularly relevant to what we were discussing last night regarding the proposed two-child limit for child tax credits and the reduction in the benefit cap. That is an issue that I know the House will return to.

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In the recent survey, 80% of kinship carers felt that when they took on the child they did not know enough about the legal options and the consequences for getting support to make an informed decision. In the light of this survey, what can the Government do to improve the situation and meet the objectives that I earlier suggested should be the Government’s objectives? How could the Government respond?

First, they could move to a presumption of kinship care. That would involve exploring the wider family as a first port of call. I understand and appreciate that that would mean a new duty on local authorities to ensure that potential kinship placements are explored and assessed for suitability before a child becomes looked-after—except, I accept, in emergencies. It may also mean a new duty on local authorities to offer all families the opportunity of a family group conference prior to a child entering the looked-after system, except in emergencies. That would allow kinship carers to come forward and family members themselves to work together in the best interests of the children.

I know that this is something that kinship carers feel very strongly about. They do not want to come in at a stage where the rest of the family think that they are pre-empting breakdown, but, on the other hand, if they hang back for too long, they are not considered and another placement for the child will be made and the opportunity for them to become kinship carers will have gone. It also means that there must be minimum standards for viability assessments with which local authorities would need to comply in order to fairly assess whether a family member is potentially a realistic option to care for the child.

The second thing that needs to change and that the Government need to be concerned about is how to recognise and meet the needs of children in kinship care. To put this briefly, kinship carers need to be viewed in exactly the same way as adopters are viewed. Kinship carers do not, for example, get what adopters get, including maternity and paternity leave. It is that sort of thing that the Government need to think about. There are various other suggestions that the Government could look to, and these are referred to by the Family Rights Group. Like adopters, kinship carers need to know that they will get access to support services, if necessary. As I have said, very many of these children have long-term health problems or a disability. Certainly, mental health issues are often very prevalent because of the trauma that the children have suffered. They really do need access to services.

But kinship carers also need access to information and advice. Of those who responded to the survey, 80% said that they did not have sufficient information about their options and the implications of these when taking on the child. They thought that independent advice was vital. The advice line that the Government and the Minister’s department have supported so far for the Family Rights Group is where kinship carers get the very best legal advice. Indeed, Justice Munby told me that he had great confidence in the quality of legal advice given by the Family Rights Group. It needs that in order to continue to give independent advice.

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I can see that the Whip is getting anxious because my time is up. All I want to say is that I have enormous admiration for kinship carers. There are some really inspirational stories, which we do not have time to go through tonight. But this is an opportunity for the Government to recognise the value of kinship carers and make sure that they get the support they need.

7.55 pm

Baroness Bottomley of Nettlestone (Con): My Lords, let me congratulate the noble Baroness on introducing this very important topic. I share her endorsement of the excellent work done by the Kinship Care Alliance and the Family Rights Group.

I do not want to cover again many of the areas that the noble Baroness has addressed, except to say that the framework within which we are debating this subject goes back to that landmark piece of social legislation, the Children Act 1989. It was a quite remarkable piece of legislation, to which reference is made around the world. It clarified the paramount interests of the child. In the words of the noble and learned Baroness, Lady Butler-Sloss, the child is always to be treated as a person, not just as an object of concern. It clarified the role of the local authority and the rights and the role of the parents. Having myself been chairman of a juvenile court for several years before I entered this House, primarily in Lambeth but also in other parts of London, as well as working with the CPAG, for Frank Field, in a child guidance unit and as a trustee of the Children’s Society, I was only too aware, as I know the noble Baroness was, of the chaotic and fragmented nature of the legislation concerning children. Local authorities then had a new duty to promote the upbringing of such children in need by their families, in so far as this can fit in with their welfare and the duty to the child themselves. That was a very new statement, and is very compatible with what we are discussing this evening. Local authorities had an absolute duty to safeguard and promote the welfare of any child looked after by them, for reviews promoting contact between the child and his family, and to consult the family on decisions. There was also specific mention of grandparents. At that time, as the noble Baroness will remember, there was a great deal of discussion of how grandparents were overlooked.

I want to make a particular comment about the debate around the Children Act 1989. I remember the wonderful work of the then Lord Chancellor, James Mackay—now my noble and learned friend Lord Mackay of Clashfern —and the remarkable work of a very talented and dedicated civil servant Rupert Hughes, who died this year. He worked with all political parties and all interests, including the law, the voluntary sector and local authorities, not only to take the consultation and legislation through but then—so unusual in legislation—to oversee its implementation. I arrived in the Department of Health three weeks before the Act received Royal Assent, so my job was its implementation. It was a component of our framework for protecting children, of which we should justly proud. The briefing goes back, time and again, to that 1989 Act. However, in that debate, there was a particularly impressive speech by the leader of the Opposition in another place, who gave a very strong endorsement of the impossible

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decisions made by social workers: if they intervene too much, they get it wrong; if they interview too little, they get it wrong. I commend to noble Lords the words of the leader of the Opposition during that debate.

Recently, I talked to a very talented woman I know who has taken on responsibility for her nephew as a kinship carer. She is like many others: she is quite affluent, but her problems are no different from anybody else’s. The sister has mental health problems and the whole family has become involved in the turmoil, the complications, the ambiguity, the anger, the loss and the mourning. I touched base with her today and she said that she has had help of an unimpeachable standard from social workers in Essex, one working with the child, who is 13, and one working with her. As the noble Baroness said, nobody expects adoptions to be easy, and neither are kinship care arrangements easy. There may be a complicated relationship; there may be gratitude from the mother but there may also be resentment. Many people suffer from mental illness or addiction problems, and this makes for great complications and tension within families.

There is one particular group I want to mention, and which this House discusses fairly frequently: the 4,000 women in prison, three-quarters of them mothers of dependent children. These families have a double punishment. The women go to prison—about half of them for theft or handling stolen goods and hardly any for violent offences. Over half have or had emotional, physical and abuse problems, either currently or in childhood. Of their children, only 9% are cared for by the father and the vast majority of the others go to kinship carers. Some 4,000 move in with their grandmothers each year because their mothers have been sent to jail, 5,000 are taken in by other family members or friends, and 2,000 others are adopted or fostered. These children are then likely to suffer greatly and repeat the problems of anti-social or delinquent behaviour. In our work supporting kinship carers, I have particularly identified this group of children who are all too easily overlooked.

In the 1960s, a remarkable woman called Mary Webster started a charity called the National Council for the Single Woman and Her Dependants. I became involved in the early 1970s and about eight years later, the noble Baroness, Lady Pitkeathley, became chief executive of what is now Carers UK. During those early years, nobody knew what a carer was. They used to say, “This is Mrs Bottomley from the careers organisation”. It was not a familiar term. It is the same with kinship carers. The work of recent years, since the Children Act, has begun to give kinship carers the priority and the recognition that they rightly deserve.

It cannot be said that simply because a child is with another member of the family that it is fine—it is the natural model and has happened for ever and a day. These are individuals and families with special needs. I commend the Minister for Children and Families for recently reporting back on the number of local authorities who have put in place guidance on what they are prepared to do for kinship carers dating back to Family and Friends Care:Statutory Guidance forLocal Authorities. That number is up to 83% now—maybe the Minister will have further information for us.

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I congratulate the noble Baroness and look forward to hearing what the Minister has to say about how we can all work harder to make this an even better service for children.

8.02 pm

Baroness Drake (Lab): My Lords, in previous debates in this House, the Government have recognised the contribution that kinship carers make to the well-being of some 200,000 children. The reasons are indeed compelling and my noble friend Lady Armstrong and the noble Baroness, Lady Bottomley, have set them out persuasively. Kinship care is the most common permanency option for children who cannot live with birth parents. The carers provide vital support for vulnerable children when parents are unable to care for them, often in urgent circumstances such as domestic violence, drug abuse and parental illness. The only notice that they may have is when the social worker arrives on the doorstep with the children late at night. The children frequently have emotional difficulties, often because they have been living with parents who are drug-dependent or who have abused them. The kinship carers save the taxpayer considerable expenditure and a number of studies demonstrate that most children in kinship care are doing significantly better than children in the care system.

However, kinship carers who voluntarily embrace vulnerable children continue to face many barriers. I cannot list them all, but they certainly include that, unlike birth parents and adopters, the vast majority of kinship carers raising children are not entitled to even one day of statutory paid leave from employment when they take on the care of the child. They care at their own cost. Some 49% give up work permanently and others reduce their earnings because they need to take that time to settle the child. As my noble friend said, a requirement is often imposed by the social worker that they do that—for good reason, because the children can be traumatised and insecure.

Kinship carers do not receive the financial support that foster parents receive. Many still get little help from their local authority, but face a considerable increase in costs. A recent Family Rights Group survey revealed that only 13% of local authorities have a dedicated worker or team supporting kinship carers. The Family Rights Group has identified areas of improvement in both the assessment of and support for kinship carers, recognising that many kinship care placements will be under huge financial strain due to inadequate support. Some may well now break down as a result of the benefit cuts, to the detriment of both the child and the taxpayer.

The Family Rights Group advice service advises more than 2,000 kinship carers a year. My noble friend Lady Armstrong gave a compelling explanation of the Rolls-Royce service that it gives. But funding constraints mean that it can answer only four in 10 of its callers, so the needs of six in 10 remain unmet. Funding has been cut two years in succession and there is no commitment to fund beyond March 2016. That cannot be right.

I congratulate my noble friend Lady Armstrong on securing this debate, particularly at this time, because we now see, in the Welfare Reform and Work Bill, direct withdrawal of support for kinship carers by the

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Government, with no coherent reasoning for that withdrawal of support. It is unfair to kinship-caring families, directly undermines the interest of vulnerable children and does not stack up in public expenditure terms. The Bill removes eligibility to the child element of child tax credits for the third and subsequent children born and introduces a two-child limit for receipt of the child element of universal credit for families making a new claim. Kinship care families with three or more children could lose up to £2,780 per year for each additional child, yet some 29,000 kinship carer families have three or more children in their households. The impact of the two-child limit on their family income will be further compounded by the biting of the benefit cap as it is set at an ever-lower level, precisely when these carers are voluntarily taking on vulnerable children and bearing the additional cost. It will be particularly harsh in its impact on kinship carers who already have their own children living with them.

I repeat the figures that I deployed in Committee yesterday because they are worthy of endless repetition. Exempting kinship carers from the two-child limit would cost £30 million. But these carers already save the taxpayer the considerable cost of placing these children in care. The cost of a child in care for a year is £40,000. The cost of care proceedings is £25,000. The savings that these 132,000 kinship families deliver by voluntarily caring for these 200,000 children runs into billions of pounds. The two-child limit needs to deter only 200 kinship carers from caring for three or more children, and that £30 million saving would be wiped out. That is without taking into consideration the human cost to the child or additional pressure on the local authorities when these children need to go into care. No reasoning has been given in any policy document for the withdrawal of support from kinship carers in these reforms.

The noble Lord, Lord Freud, for whom I have the greatest respect and who has previously shown a sensitive and considered understanding of the contribution of kinship carers, had considerable difficulty yesterday in persuading the House that there was a coherent line of reasoning in this withdrawal of support. The impact assessments gave no assessment of the disincentive effect, no assessment of the cost to the other areas of public expenditure from this effect and no assessment of the outcomes for the children. The withdrawal of this support will impact on some of the most vulnerable children. It is not explained, it is not defended and it is not assessed.

8.09 pm

Baroness Massey of Darwen (Lab): My Lords, I thank my noble friend for again giving us an opportunity to discuss and examine the issue of kinship care. I hope that, as the Minister for education is answering the debate, it is an indication that education will work alongside other government departments to consider and make recommendations on kinship care and vulnerable children. Their health, education and welfare is a cross-government matter.

Of course, children being taken into care of any kind are vulnerable. They are all suffering loss. Those being looked after by relatives or friends have often lost a parent or parents through death, imprisonment,

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drug or alcohol misuse, domestic violence, mental health issues or other trauma. Kinship carers accept these children, some of whom may be very young, because they do not want the child or children to be fostered or adopted outside the family. It is worth remembering that many such carers also become vulnerable at the same time as the child, for reasons I shall discuss.

For about 10 years, I was the chair of the National Treatment Agency for Substance Misuse. In that time, I became aware of the issues facing kinship carers, and I met many of them. They were mainly women and they were mainly grandparents. Some of them had had to give up work to become carers and all had financial difficulties, or were grieving for a son or a daughter who had been lost to them for one reason or another. One grandparent I met, or “midnight granny” as they call themselves, suddenly had to take on three children aged between one and seven when her daughter died of a drug overdose—and yes, it did happen at midnight. This woman, who was widowed, lived in a one-bedroom flat and worked. Her life was turned upside down. She gave up her job and fought to be rehoused. The rehousing from that one-bedroom flat took two years, although there were three children. She reported having no help from social services and spent hours every week filling in forms. This is not an untypical case. The woman became vulnerable as her health suffered, and she became poor. She struggled to pay for food, clothing and toys for the children. She unselfishly cared for those vulnerable children lovingly, as so many kinship carers do.

It is perhaps not so astonishing to learn that children in kinship care often do better socially, emotionally and academically than children in other forms of care. I, too, was pleased to become acquainted with Grandparents Plus and the Family Rights Group, which are both part of the Kinship Care Alliance. These organisations have been stalwart in seeking a good deal for kinship carers and the children they look after. Much has been achieved, but there is much to do, and I hope that the Government will be sympathetic to this cause.

A report from the Family Rights Group and Kinship Care Alliance, which has already been mentioned, points out, interestingly, that 40% of children living in care in England live in the 20% most income-deprived areas, while 95% of children being raised in kinship care are not “looked after” by the local authority. Local authority support to kinship carers is largely at the council’s discretion. Only 5% of children in kinship care are “looked after”, so that they qualify for financial support; the rest suffer. Surely there is an anomaly here. Kinship carers save the Government billions of pounds a year in care costs, but are often treated appallingly by local authorities. When I was working in the substance misuse field, I came across only two local authorities which had dedicated support for family and friends carers, and only around 40% of kinship carers receive regular support from a social worker.

So, along with the Kinship Care Alliance, I would plead with the Government to do three or four things. They should require local authorities to publish a kinship policy, set up a dedicated post to oversee it, particularly in terms of monitoring the progression of children in such care. Kinship carers should be given

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the same support that is available to adopters, as my noble friend mentioned. Kinship carers should be entitled to free childcare, the pupil premium and priority school admissions. They should be exempt from the limiting of child tax credit to two children, the benefit cap, and the work conditionality rules that have been extended to the carers of under-five year-olds.

In answer to an Oral Question in the House of Commons on 26 October, Edward Timpson, the Minister of State for Children and Families, for whom I have enormous respect, stated that a special guardianship review and social work reform is under way to better support children. He also stated that parental leave, providing greater choice for families trying to balance childcare and work, will help. I am not sure how this latter provision would benefit the kinships carers that I am talking about, so I will need to examine that. But I would like to know when the guardianship review will be finished. Perhaps the Minister could let me know about that later. I look forward to his reply and to his comments on the issues raised in the debate today. Again, I thank my noble friend for introducing it.

8.15 pm

Lord Storey (LD): Perhaps I, too, may start by thanking the noble Baroness, Lady Armstrong, for initiating the debate, the Kinship Care Alliance for providing briefing by my noble friend Lady Tyler of Enfield, and indeed the House of Lords Library. I said at Question Time earlier today that it is vital that every child is in a loving and stable family or environment. We have made huge progress over the past few years and, like the noble Baroness, Lady Bottomley, we should congratulate the Government on what has been achieved. However, we heard during the Question on adoption about the fall in the number of children being adopted, and we saw from DfE figures for up to March of this year that some 6,000 children have gone missing from care. We still have quite a lot of work to do and we need to understand why these things happen. We need to understand the impact that family courts can have on local authorities and how they respond to adoption. So there is always work that needs to be done.

We know that kinship children have often been maltreated so they have greater challenges for us to deal with, yet they have better outcomes, as we heard, than those who are looked-after children. The noble Baronesses, Lady Armstrong and Lady Massey, have already mentioned the figures—200,000 children raised by kinship carers across the UK and 49% of carers had to give up work permanently to do so.

I shall preface my remarks by saying that it is important that children do not just drift into kinship care that might be wholly unsuitable for them. In my professional life, I know of children who have been brought up by a family relative who at best is well-meaning but unsuitable, and at worst a real danger to that child. I agree with the Kinship Care Alliance that the wider family should be explored as the first port of call for a child entering care, taking into account the child’s wishes and feelings, and also placing a duty on local authorities to ensure that potential places are explored and assessed for suitability before a child becomes looked after.

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There is a long history in the UK of children being cared for by relatives and friends when their parents, for whatever reason, are unable to care for the children themselves. Research and knowledge about kinship care is mostly limited to formal kinship care—commonly meaning placements that are made by child welfare agencies where carers have been approved as kinship foster carers. Much less is known about children who live informally with kin where the arrangements are made outside the responsibility of the child welfare agencies. There is considerable concern, since many more children are likely to live in informal arrangements than formal ones.

The policy on kinship care is developing in the UK but perhaps not in a joined-up way. In 2007, for example, the Scottish Government published a strategy for children living in kinship and foster care. Similarly, the Welsh Government agreed that grandparents and other kinship carers should be included in the delivery of parenting programmes in Wales. In Northern Ireland, minimum kinship standards which were introduced in 2012, specifying the requirements which health and social care trusts have to meet when placing looked-after children in kinship care arrangements, and clarifying the level of service that children and families can expect to receive. These relate only to looked-after children in kinship care.

While the rate of change in our four UK countries is variable, it is important to note that the message from children and kinship carers in each country were the same. For all the carers the greatest difficulty was lack of financial support. This added to their burden and made all aspects of their lives much more difficult. The way in which we deal with kinship care and how it has developed is fragmented and piecemeal. We have a complex and wholly unjust situation. Providing kinship care must be a crucial service to the community—a society caring for its own—but it sometimes pushes carers into poverty. Chance dictates whether kinship carers are supported financially or otherwise. As a result, whether kinship carers receive help financially or in kind is not related to the children’s needs or to the financial situation of the carer. Do we not need to ensure that assistance is related to need?

If we look at other countries, for example, we can learn a lot. In Spain, an allowance is paid to carers on the basis that they have enough money to bring up the child or children in care. This would be a much more equitable way of providing financial support than exists at present and would enable more relatives and friends to take on this role. It would also help in the overall problem. At present, there is considerable variation in whether allowances are paid when private law orders are made. The current discretionary system for providing financial allowances to private law orders needs to be completely overhauled and support for flexible working might enable kinship carers of working age to retain their jobs when children come to live with them. Change is needed to replace the current unjust arrangements for kinship care. We should move towards a national kinship allowance to cover the costs of bringing up the children. We need to support flexible working in the hope that it will enable more kinship carers of working age to retain their jobs when children come to live with them

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A duty should be placed on local authorities to conduct a children’s need assessment. Would it not be good if we had a cultural shift in attitude for the major contribution of informal and formal kinship care as a good option for children? We know that kinship carers are under huge pressures and yet, despite taking on a huge burden from the state by looking after children who would otherwise end up in the care system, kinship carers and the children they look after are still an overlooked group who experience high levels of poverty with little or no statutory support.

8.22 pm

Lord Watson of Invergowrie (Lab): I, too, congratulate my noble friend Lady Armstrong on securing this debate on a most important topic.

Kinship carers include every kind of relative, as well as friends who are raising children unable to live with their parents. They provide a crucial web of support for children who have often suffered in ways that most of us, I suspect, could not imagine. Yet it seems they are undervalued by the organisation that ought to be most indebted to them—the Government.

We know that 95% of children living under kinship care arrangements are not “looked after” by the local authority. Therefore, by keeping vulnerable children out of the care system, these kinship carers save the taxpayer billions of pounds each year in care costs, as noble Lords have already said. The financial cost of raising the child typically falls directly on the kinship carers themselves, yet they are treated as the poor relation in terms of parents looking after children who are not their own.

Kinship carers get less support than those who undertake straight fostering, so it may be in a local authority’s financial interest to place a child under a special guardianship order rather than to remove them from that environment and place them into a foster placement or a children’s home. As my noble friend Lady Armstrong outlined, taking on someone else’s child is much more demanding than just adding a child to your family. The Government should acknowledge this important fact.

By contrast, adoption has been the main focus for the Government recently. The Education and Adoption Bill makes provision for regional adoption agencies, which are a welcome development, and recently we heard from no less an authority than the Prime Minister that further legislation on adoption is apparently in the pipeline. The question that has to be asked is why the same attention has not been given to the 95% of children who are in other forms of care, including those who cannot live with their parents and who are being raised by kinship carers. We might also ask why the same rationale for supporting adoption—not least in terms of post-adoption support—has not been applied to kinship care. Unfortunately, the Education and Adoption Bill was drafted so tightly that the adoption provisions could not be amended in favour of kinship care—or, indeed, any other form of care.

Various noble Lords referred to the survey carried out by the charity Family Rights Group. I will not repeat the figures here, but I pay tribute to the group and to the Kinship Care Alliance for the very thorough briefing that it kindly provided.

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We know that a review of special guardianship orders is under way and will report next year. It would be hugely encouraging for the estimated 130,000 families raising children in kinship care across the country—often, as we have heard, at cost to themselves and their own children —if a similar review was announced into kinship care.

My noble friend Lady Drake referred to last night’s refusal by the Government during the welfare reform Bill to exempt parents of adopted children from the two-plus children tax credits limit. That point bears repeating because it makes no sense at all. I know that the Minister will say, “It’s not my department”. Of course, as far as that Bill is concerned he is correct, but it is his responsibility. That mean-spirited decision by his colleague, the noble Lord, Lord Freud, will impact on his department to a considerable extent. At a time when more parents are needed for all looked-after children, the cost of taking a child under a family’s wing is considerable. Parents who already have their own children will now be deterred for financial reasons from becoming involved, which means it will become even more difficult to find sufficient parents for looked-after children. For kinship care, the decision will make it even more difficult to place sibling groups.

I hope that the Minister is fully aware of the implications of the denial of exemption to parents prepared to take on the care of children from troubled backgrounds and that, as a result, he will speak to his colleague and even echo the case made so eloquently by many noble Lords in this Chamber 24 hours ago. It is not too late to have that important exemption inserted in the welfare reform Bill. The Minister would be failing in his duty of service to the Department for Education and many of the children who rely on it for their care if he does not highlight the damage that will be done to children in kinship care and others as a result of the Government’s, at least current, intransigence.

Finally, why should kinship carers be valued less highly than adoptive parents? My noble friend Lady Massey and the noble Lord, Lord Storey, outlined changes that they advocated to the support that could be supplied to kinship carers. I would add to that a positive step the Government could take: to extend the adoption support fund and the adoption passport to children subject to a special guardianship order. If a child is in the care system the parents looking after them are entitled to foster parent or adoptive parent payments. It is fair to ask why those should not be available to and apply to kinship carers.

Often, an older sibling or grandparent steps in to prevent a child being formally taken into care, but if they do that the support given to them is much less. In effect, they are punished financially for relieving the system of the need to look after that child, which means that both the family and the child lose out. That is surely neither logical nor fair. Typically they are the same children with the same range of needs. The legal route taken on how the child gets the care they need should not matter; it is surely first and foremost about meeting the needs of the child and properly supporting those who take on the role of carer.

I have a huge amount of admiration and respect for anyone willing to look after a child who is not their own and provide them with something they may never have known—a loving home in which the child can

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flourish and reach their potential. I believe that the Minister shares that view, but he needs to use the influence that comes with his office to demonstrate that kinship carers are valued as highly as any other person acting in loco parentis. I hope he will indicate that that is indeed what he intends to do.

8.28 pm

The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con): My Lords, I join other noble Lords in thanking the noble Baroness, Lady Armstrong, for calling a debate on this important subject. I am sure that the whole House would agree that kinship carers, many of whom are grandparents, play a pivotal role in caring for children who cannot live with their parents. I welcome the opportunity to answer for the Government in this short debate.

First, I make it clear that the Government do not see a hierarchy between adoption, fostering, residential care or kinship care. We are interested not in favouring one type of care over another, but in what is right for each individual child. Over the last five years we have made significant strides in this regard. I am grateful for the supportive remarks made by the noble Lord, Lord Storey, my noble friend Lady Bottomley and the noble Baroness, Lady Massey.