Scotland Bill — House of Lords, 2015-11-24
Topic: Other
James Hope (Crossbench, Unknown): My Lords, it is a very real pleasure for me to follow the noble Lord, Lord Forsyth of Drumlean. He will remember that when he was Secretary of State for Scotland and I was the head of the judiciary, we did not always see eye to eye. In fact, I can assure your Lordships that he was just as vigorous and energetic in his presentation of policies with which I did not agree, and just as controversial, as he is now. These days are past now, if I can echo the words of a well-known song, and it is a pleasure to listen to such a spirited speech, with much of which I can agree I would also like to echo the words of the noble and learned Lord, Lord Mackay of Clashfern, a former dean of the Faculty of Advocates—as am I—in what he said about the noble Lord, Lord Campbell of Pittenweem, and the noble Baroness, Lady McIntosh of Pickering. It is a quite unusual situation for two members of the Faculty of Advocates to make their maiden speech in this House on the same day. I am not sure that this has ever happened before. It is a very real pleasure for us, who recall the faculty and owe it so much Turning to the Bill, I confess to having mixed feelings about it. Of course, the Bill must pass and it was—and is—an essential part of the process that the recommendations of the Smith commission are put in place. As the noble Lord, Lord Smith of Kelvin, put it in his foreword and also said today, that process is one of turning the recommendations into law. There must be some relief at the progress made in what has been achieved so far to bring the Bill forward to this House within a year of publication. The report is not yet one year old—I think its birthday is on Friday of this week Leaving that to one side, there are some serious grounds for concern. I mention a point developed by the noble Earl, Lord Kinnoull, in his very perceptive speech, that if you look at the detail in the Bill and contemplate what it really means for the people in the Scottish Parliament, you begin to wonder at the ability of that Parliament to handle what we propose to deliver. After all, the Parliament was designed in the Bill that became the Scotland Act 1998. I am one of a number of noble Lords here who is a veteran of the debates then. I remember that the Minister who introduced it, the noble Lord, Lord Sewel, said: "Through this Bill we seek to establish an enduring, fair and stable settlement".—[Official Report, 17/6/98; col. 1567.] He said he was, "completing the unfinished business of which John Smith spoke", and that this was to be a, "lasting political legacy".—[Official Report, 17/6/98; col. 1574.] What was designed, in a similar pattern to Wales and Northern Ireland, was a unicameral system with a series of committees to control and scrutinise the Executive and the legislation being put through. Given the package that was in the Scotland Bill of 1998, that seemed a reasonable and stable situation. However, as the noble Baroness, Lady Goldie, was careful to explain to us, the political situation has changed entirely from what was envisaged in 1998. That leads me to the concern about the ability of the Parliament to really deal with the situation we have now, with a majority Government and all the consequences already mentioned The noble Lord, Lord Smith of Kelvin, drew attention to this problem in his foreword, where he said that the addition of these new responsibilities, "means that the Parliament’s oversight of Government will need to be strengthened" He called for, "an inclusive review which will produce recommendations to run alongside the timetable for the transfer of powers" As far as I can detect, that has not happened. I do not know what is going on to try and achieve the noble Lord’s wise words. I hope that the Minister in his reply will be able to give us some insight into the progress, if any, being made to achieve that kind of strengthening of the system of government which will need to cope with these new responsibilities On the detail of the Bill, in the short time I have left, there are particularly Clauses 1 and 2, to which the noble Lord, Lord Lang of Monkton, referred and which have been the subject of some discussion in the Constitution Committee’s report. Clause 1 reminds me of Article XIX of the Act of Union 1707, which declares: "That the Court of Session or Colledge of Justice do after the Union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom" In other words, that was a declaration that the College of Justice was not to be capable of being removed by an Act of this Parliament. As a student at Edinburgh University many years ago, I was taught that the provision in those terms was fundamental law and in that respect the UK Parliament did not have absolute sovereignty. That is what I was taught. Clause 1 seems to drive in the same direction: a declaration that is perhaps intended to have political effect but, as the noble Lord, Lord Smith, said, the purpose of the Bill is to turn these things into law. If it is turned into law then one day somebody will bring the issue before the judges. The judges do not invent the argument; it is brought before them. If it were brought before them—I sincerely hope it never would be—that would give rise to exactly the point that the noble Lord talked about In Clause 2, I am concerned about the use of the word "normally". I do not understand what that would mean. If this is making law, again the judges will have to decide what is normal. I do not see how they could possibly do that without evidence. It has to be explained. Also, as has been pointed out, the Sewel convention must be explained. If it is to be turned into law, it must be capable of being argued about in court and made the subject of a determination by the judges which makes sense and contributes to our well-being. These points are very well taken by the committee, with great respect, and I hope we can develop some further thinking about this in Committee.