European Union (Withdrawal) Bill — House of Lords, 2018-05-02
Topic: Mixed Topics
James Hope (Crossbench, Unknown): My Lords, before I introduce the series of amendments in my name, perhaps I can express my thanks to the noble and learned Lord the Minister for the very helpful way in which he has introduced his Amendment 89DA, and also pay tribute to the work that he and his Bill team have done since we began these discussions way back at the beginning of Committee. The Bill has changed very substantially since its original form. In many respects, I was concerned about the way in which it failed to recognise the structure of the Scotland Act. Considerable advances have been made to bring this Bill into line with the recognised approach to devolution in that Act There are 10 amendments in my name, grouped from Amendment 89DAA to Amendment 89DAE, then with Amendments 89DAG and 89DAH and two important amendments, Amendments 92BAA and 92BBA. These amendments come from a list of proposed amendments attached to a letter sent to the Lord Speaker by the First Minister of Scotland at the end of last week; in fact, I think that it arrived last Thursday. It is against the background of that letter that I have introduced these amendments for debate this evening. I shall quote short passages from the First Minister’s letter, because they set the scene for what she sought to achieve in writing to the Lord Speaker. Commenting on the amendments that the noble and learned Lord has introduced, she says: "The amendments represent a considerable advance on the original position of the Bill, in its introduction to the Commons" She goes on to say: "What is not acceptable to the Scottish Government is that these amendments would bind the Scottish Parliament in law in these areas, whereas the commitment on the part of UK Government is binding in political terms only" When she says "these areas", she refers to the common frameworks to which the noble and learned Lord referred in his introduction. Near the end of her letter she says: "Annexed to this letter are further amendments (with explanatory notes) which, if made, would resolve the concerns set out in this letter, and give the Scottish Parliament its proper place in the constitutional arrangements of the UK, during the challenging but necessary task of preparing our laws for EU withdrawal" For the First Minister to write to the Lord Speaker in this way is a very odd way to proceed, but it was probably unavoidable, due to the refusal of the Scottish National Party to nominate anyone for membership of this House. Before I develop a point on that issue, one ought to recognise the fact that the amendment introduced this evening has been awaited for a very long time indeed. Various Members in the House of Commons were pressing for an amendment before the Bill left the Commons. I am not attributing any blame whatever to the Government for the fact that they have only now come forward with these amendments. The fact is that it has taken a great deal of work and much careful negotiation and planning to achieve what the noble and learned Lord has achieved in the amendment which we see before us this evening. It is a long way from what was being thought about in the House of Commons, and it is just a misfortune of timing that we are facing the position that the amendment comes so late in the process of taking the Bill through Parliament That being said, I very much regret the absence of at least one member of the Scottish National Party in this House who could represent the views of the Scottish Government. There is no shortage of suitable candidates, I believe. Their position is all about ideology and their view of the principle of democracy; they refuse to have anything to do with an unelected Chamber. We are not short of people—I look particularly to my right, towards the Liberal Democrat Benches—who believe that this House should be an elected Chamber, but they take the view that, while the present system exists, it must be made to work, and they are content to sit here recognising that that is how Parliament as a whole works today. In a way, it is rather like a bicycle, which has two wheels to it; you cannot really get anywhere unless both wheels are attached. That is how this Parliament works. The House of Commons works in tandem, to use another analogy, with the upper House, and we all know that this House performs a valuable function—much valued by the Government, I may say, on behalf of the whole country—as a revising Chamber. We also know that the House of Commons always has the last word, and we never assert ourselves to the extent of insisting on our view when the Commons has made its view, if it contradicts us, absolutely plain. So it is a real shame that the Scottish National Party cannot accept how this place works. If it is to participate fully in what this Parliament does, it needs to make use of the whole machinery, as it is an essential part of the legislative process One could say that, for much of the period when the SNP has had large numbers of Members in the other place, their absence from this Chamber has not mattered very much, but we are entering a time when it is going to matter a great deal, and this evening’s debate is one example. Much of the delegated legislation that we are anticipating, which is going to come through the mechanism to which the noble and learned Lord referred, will refer to Scotland, and many other bits of delegated legislation will come through Clause 7, and probably Clause 9, which will affect Scotland too. Who, then, is to represent the views of the Scottish Government? Are we to have a succession of letters by the First Minister to the Lord Speaker, which somebody might possibly pick up, to achieve what she seeks to do? It is very sad that the ideology is so deeply rooted that there is no real prospect of its being changed. The public should know that Scotland is not being very well served by adhering to it as precisely as we see being done today Despite all that, it is important that we should look at and debate at least some of the amendments that the First Minister attached to her letter. There were two sets. The first set took a more radical view of the amendments that we are considering this evening than the second. It invited the Government in effect to remove the entire system, which Clause 11 is really designed to set up, by placing restrictions on the legislative competence of the Scottish Parliament for a temporary period. It is far too late to engage in a debate fundamentally altering what we set out in the amendment before us, particularly having regard to the fact that the Welsh Government have agreed to what is on offer The second set is the one from which I have selected my amendments. I have not included all the amendments in that set, because I do not think that it is necessary to do that to put forward the basis of the argument which the Scottish Government seek to advance. I am taking my 10 amendments from that particular group. It may be convenient to start by addressing Amendments 92BA and 92BB, which refer to something called type C, with reference to Sections 30A(1) and 57(4) of the Scotland Act 1998 Those not familiar with the systems might wonder what type C is all about and why my amendments seek to change type C to type A. The point is that Schedule 7 to the Scotland Act 1998 contains a table listing various provisions in the Scotland Act that are subject to treatment by delegated legislation, setting out in a table various types of procedure that are to be used to subject those bits of delegated legislation to scrutiny. The type C procedure requires that the measure be approved by resolution of both Houses of Parliament; in effect, it is describing the affirmative procedure for dealing with statutory instruments, which we are very familiar with. The type A procedure has that too, but the essential difference between them is that type A requires the measure to be laid before, and approved by resolution of, the Scottish Parliament as well, so it seeks the agreement of both the devolved legislature and the United Kingdom Parliament. That is really the central point that runs right through all these amendments.