Scotland Bill — House of Lords, 2015-12-08
Topic: Government Operations
James Hope (Crossbench, Unknown): My Lords, it is probably right that I should now speak to Amendment 6, as set out on the Marshalled List, which assumes that subsections (1) and (2) in the new clause remain as printed in the Bill, and then seeks to alter the wording—and, I respectfully suggest, improve it—of subsection (3) I should explain the origin of the wording of the amendment. I have done my best to keep the Minister informed about my thinking on this matter. As with other amendments on the Marshalled List in my name, the source from which I drew is a series of amendments proposed by the Scottish Government in June, in advance of Committee stage in the House of Commons. However, I tabled these amendments entirely on my own initiative. I am not instructed by anybody and did not table them on behalf of anybody other than me—although they have the support of the noble Lord, Lord Norton of Louth, who may say a word on some of them in due course. It simply seemed to me on reading them, without any political background whatever, that they had some merit in view of their wording and therefore should be discussed. Some of those amendments, which I will come to later, were before the other House but were withdrawn or not moved and therefore have never been discussed. That seemed an unfortunate state of affairs if one is seeking to improve the Bill. This amendment was, I think, tabled on the first day of Committee in the other place and was negatived on a Division. Nevertheless, it is open to this House to look at the wording again and that is what I seek to do Before I say more about the wording itself, perhaps I can respond to the point made by the noble Lord, Lord Cormack, about the relationship between the Scottish Parliament and the Parliament of the United Kingdom. The report of the Constitution Committee, chaired expertly by the noble Lord, Lord Lang of Monkton, referred to a passage in a judgment that I wrote in the Supreme Court in a case called AXA General Insurance Ltd v the Lord Advocate in 2011. In the passage referred to, I sought to describe what I understood to be the position between Scotland and the Parliament at Westminster. I made the point that the Scotland Act 1998 provides that the, "Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature", with a, "democratic mandate to make laws for the people of Scotland" I made the point that it does not, and was not intended to, "enjoy the sovereignty" this Parliament has and went on to say that, "the sovereignty of the Crown in Parliament … is the bedrock of the British constitution", and, "remains with the United Kingdom Parliament". Nothing that I may say in the course of the debate is intended to detract in any way from those propositions. I believe absolutely in the crucial position that this Parliament enjoys. It is well understood that the Scottish Parliament does not have sovereignty in that sense, and that is perfectly clear because its legislation can be reviewed by, among others, the Supreme Court to see that it falls within the parameters set for the powers of the legislature under the Scotland Act. That is all by way of background In considering the amendments proposed by the noble Lord, Lord Norton of Louth, one has to recognise that the Smith commission, which discussed the matter in layman’s terms, said that the position of the Scottish Parliament should be recognised by legislation. Given that that proposition was made and accepted by all the parties to the discussions before Smith, it seems difficult to avoid having at least a clause that recognises the permanence of the Scottish Parliament. So it is against that background that I do not quarrel with subsections (1) and (2) but direct my attention to the wording of subsection (3), with the aim of improving it to clarify the position The amendment would insert a new subsection, which states: "Subsection (1) may only be repealed if … the Scottish Parliament has consented to the proposed repeal" That is there simply to recognise that the repeal we are talking about is a repeal of the provisions establishing the Scottish Parliament in the Scotland Act. There seems merit in the proposition that, if that Parliament is to be abolished, it should at least be in a position to express a view as to whether that is desirable. I am not seeking to undermine in any way the sovereignty of this Parliament; I am simply looking at the relationship between the Parliament created by the Scotland Act and a measure that would seek to abolish it. Once it has been created and when it is still in existence, it would seem rather odd that it should be unable to express a view on whether that should or should not happen The other part of the amendment simply looks at the proposition that there should be a referendum, which the Government have accepted should be part of the package to support the remaining provisions in Clause 1. The amendment would clarify what the subject matter of the referendum is to be and state in terms that there would have to be, "a majority of those voting at the referendum", before it had the effect suggested by the clause. The condition is that a referendum has been held in Scotland on the proposed repeal, and that a majority of those voting in the referendum have consented to it. It may be that that is implied by the wording, but it seemed to me that in the interests of clarity, it would be better to make the matter express, because what we are contemplating is such a major political event that the exact condition that would give rise to authorising the proposed repeal needs to be put beyond doubt I shall make submissions later in support of other amendments, but those are the reasons behind this amendment and the background to why I tabled it.