Scotland Bill

My Lords, this group includes a notice in my name and that of my noble friend Lord Browne about Clause 7 standing part of the Bill. I will start with that and deal with the other amendments in due course. Clause 7 introduces a new mechanism of a limited reference of a Bill to the Supreme Court to determine whether certain provisions of the Bill are within the competence of the Scottish Parliament. At present, once a Bill has passed through all its stages in the Scottish Parliament, it is for the Presiding Officer to present the Bill to Her Majesty for Royal Assent. However, before the submission for Royal Assent, there is a 28-day period during which the law officers—the Advocate-General, the Lord Advocate and the Attorney-General—can consider the Bill and if so advised refer it under Section 33 of the Scotland Act to the Supreme Court on a question as to whether any of its provisions is within the competence of the Scottish Parliament. Under Section 33, the whole Bill is referred and there is no mechanism to refer only certain parts of the Bill. Even if only one part is thought to be outwith the competence, none of it can be commenced until that issue is disposed of. That explanation of the effect of a reference under Section 33 perhaps sets out the argument for the Government’s proposals in Clause 7. However, there are serious concerns as to how this will work in practice. I hope that this debate will draw out some of the rationale behind their proposals. To date, there has been no reference under Section 33 to the Supreme Court of a Scottish parliamentary Bill. It might help if I briefly set out the internal procedures put in place during my time as Lord Advocate to ensure that Scottish Bills were within the competence of the Parliament. A Bill introduced into the Scottish Parliament by a Scottish Minister must be accompanied by a statement under Section 31 of the Scotland Act that in his or her opinion the Bill is within the legislative competence of the Parliament. Members of this House will be familiar with that kind of statement because all Bills presented here are accompanied by a statement made under Section 19(1)(a) of the Human Rights Act. The Scotland Bill is no exception to that. Therefore, there is a certificate, as it were, on all Scottish Bills which are put into the Scottish Parliament. Certainly, in my time as Lord Advocate, no statement would be given by a Minister without their having sought the advice of the law officers that it could be made. I cannot speak for present procedures and it is possible that they have changed, although I have no reason to think that they have. Nevertheless, there are in place substantial internal procedures to ensure that Bills are within competence. In reaching a view on the competence of a Bill, there were a number of procedures. Those who were Ministers at the time will recall the passporting arrangements whereby there was a process with the Minister for parliamentary business and the Lord Advocate to have what in the UK Government would be a legislation committee—certainly, when I was Solicitor-General there was a legislation committee—which considered all the issues that were thrown up by the Bill, including legislative competence. In addition, officials from the law officers’ departments were in constant touch with each other. We would talk to officials within the Advocate-General’s office and, for that matter, the Attorney’s office. Officials in the Scottish Government Legal Directorate would also engage with relevant departmental officials—for example, in the Home Office—to ensure that issues were identified at an early stage. The role of the Presiding Officer is very important. The noble Lord, Lord Steel of Aikwood, will have had first-hand knowledge of that. The Presiding Officer must decide whether a Bill presented to the Scottish Parliament is within the competence of the Parliament, although I think I am right in saying that the standing orders allow for that decision to be overridden by the Parliament, but nevertheless it is an important element. Again, contacts were made between the office of the Presiding Officer and the law officers to ensure, as far as possible, that any Bill presented was within competence. On amendments to Bills as they proceed through Parliament, it is true that not all amendments were referred to the law officers, but those that might cause an issue again were referred. I can say that on more than one occasion I did make it known both within the Executive, as well as on occasion to the individual Member who had proposed the amendment, that if it found its way into the Bill, the question of legislative competence would arise and that I or another law officer might have to refer the issue of competence to what was then the Judicial Committee of the Privy Council and is now the Supreme Court. So my experience is that a number of mechanisms are available for the detailed consideration of a Scottish Bill at all stages of its passage through the Scottish Parliament, and that issues of competence should be dealt with in that process. Even so, the Bill would be given another look once it had gone through all its processes. We usually took 28 days to do that, although there were occasions when there was an emergency and the law officers dispensed with the period of 28 days. What this clause now proposes is that there will be a mechanism for referring part of a Bill to the Supreme Court for scrutiny. As I understand it, what will happen is that the Bill could still be given Royal Assent despite the limited reference while the issue is being considered by the Supreme Court. There is a mechanism for the remaining unaffected parts of the Bill to be brought into effect. However—I am looking for some guidance from the noble and learned Lord on this—as I also understand it, the Supreme Court would have a significant role in determining or making provision for how it would come into effect. I shall come back to that in a moment. The Scottish Government have said that they are not in favour of this. An interesting point is the question of whether it is desirable to ask Her Majesty for Royal Assent to a Bill with disputed provisions in it. There may well be a point to be made about that, although perhaps not to be pressed too far. Nevertheless, there is also the question of what signal that would give the general public. Legislation on the statute book may not be in force but usually there is no question mark as to its validity. Moreover, the provision that: "““The Queen’s Printer for Scotland may publish notice of the reference and of the effect””," may not be sufficient. Clause 7 was not one of the recommendations of the Calman commission. I think it arose as a result of the commission’s general recommendation that: "““There should be a review of all other provisions in the Act that constrain the Parliament in terms of its procedures or working arrangements to ensure they are proportionate, appropriate and effective””." I do not criticise the Scotland Office for having embarked on that, but the Government have identified through the review a number of areas, including this one, where they could make further provision. In its evidence to the Scottish Parliament Bill committee, the Law Society of Scotland welcomed Clause 7 as ““potentially viable”” and made reference to concerns that the existing Section 33 power to refer legislation was not being used because it was considered too blunt an instrument, and that the effect of ““freezing”” an entire Bill was too much of a disincentive to a law officer making such a reference. It is unfortunate that this evidence was perhaps not probed slightly further. As Lord Advocate, I took the view that reference of a Bill under Section 33 to the Supreme Court was a quasi-judicial function. If I reached the conclusion that a provision of the Bill was outwith the competence of the Parliament, I would have felt obliged to refer the Bill to the court, notwithstanding the effect on the other provisions. I know that some lawyers, judges and academics have lamented the fact that there have been no references, because they believe that references would have helped clarify some of the issues around the reserved devolved areas. However, I never thought that it was my role to refer Bills for academic purposes and to allow lawyers to argue obtuse points of law in the Supreme Court. It is there for a particular purpose to allow policing of the provision. In his evidence to the Scottish Parliament Bill committee, Richard Keen QC, the dean of the Faculty of Advocates, expressed concern that the ability to bring into force certain provisions of a Bill while others remained suspended might be contrary to the will of the Parliament, which may have passed a Bill due to checks and balances between parts of it; that is, Parliament would not have legislated in respect of one part of the Bill without the benefit of the check or balance provided by another. He went on to suggest that a way of resolving it would be to allow the order bringing in the non-referred part to be subject to the affirmative procedure, so that Parliament had an opportunity to consider whether it should be brought into force without the other bits. However, his evidence to the Scottish Parliament Bill Committee highlights a concern that is a theme also in the committee’s report; that is, that you in that way affect the coherence of a Bill. The Scottish Government have questioned the workability of the provisions given that a large part of the Bill in question could be rendered incoherent by the suspension of individual groups of clauses. They also raised serious concerns over what they saw as a significant departure from democratic practice in giving the Supreme Court powers to determine the commencement of provisions passed by the Scottish Parliament, powers which were usually the monopoly of Ministers. The Bill Committee, in a majority report, recommended that the clause be removed from the Bill altogether. I shall come back to the issue of principle in a moment, but perhaps I may turn to the detail of the amendments, which in a way highlights some of the particular issues. The Government’s amendments expand further the discretion that the Supreme Court would have in relation to the orders that can be made by Scottish Ministers. Once there has been a partial reference to the Supreme Court, and if it decides that any of the provisions are within the legislative competence of the Parliament, the Scottish Ministers can make an order. However, and this is the important point, the court may order that any provision is not to come into force until such time as the court decides, prohibit Scottish Ministers from making an order until the court appoints a time, and require persons as the court considers appropriate—so that is anyone—to take such steps as the court considers appropriate to bring the court’s judgment to the attention of persons affected by it. So the court is given a significant role in areas which are usually the preserve of Ministers; they are, effectively, executive functions. As I understand the amendments—no doubt the noble and learned Lord will explain them in greater detail—the court can also now provide that the time limits within the Interpretation and Legislative Reform (Scotland) Act in relation to orders may be overridden at its discretion. In summary, there are serious questions as to whether this provision is necessary. The only real evidence is a concern from the Law Society—which is not backed up by any issue in relation to any Act—that references may not have been made to the Supreme Court because all the provisions would have to go there. Of course one understands that, if it is only a small point in a Bill, putting it all there may be seen as a bit of a blunderbuss. Nevertheless, given the concerns of the Scottish Parliament and the lack of evidence of a problem, does the noble and learned Lord consider that this should proceed into the Bill? On the amendments tabled by the noble Lord, Lord Selkirk, clearly it is right that the person who makes the reference should be responsible for the publicity. Whether that is achieved through amendments brought forward by the noble Lord or by the Government at some stage in the future, I would certainly support them if this clause stood part of the Bill.