I do not agree with the mood of the noble Lord, Lord Lang of Monkton, because I do not share his views on Amendment 1. I am happy that the Government inserted further clauses into the Bill. I am pleased that that was the result of cross-party consideration and that the Government responded to the Smith commission—in a difficult context—and
put into proposals what I think most people in Scotland now understand: that they have two Parliaments. This is not an easy thing to do and parliamentary draftsmen have a difficult task because we now operate in a situation where we have more than one sphere of power over primary legislation. That poses considerable difficulties for some because they believe that one should be primary and one subsidiary to it. So far as primary legislation is concerned, most people in Scotland consider themselves as having two legislatures. It is even harder because we do not have a written constitution. In the absence of one, we have to rely on other measures to see how we entrench parts of our governance.
It is not the case that this has simply been dreamt up over the last couple of months, as some noble Lords have indicated. Nor it is the case that it is in response to the referendum. Nor is it the case that it is only to do with political expediency. Some of us have believed for a considerable time that it is right to reflect in statute the permanence of the Scottish Parliament in the context of a new and evolving structure of governance in the United Kingdom. I absolutely believe that that is best in a codified federal relationship, which I hope would be the result of a constitutional convention—others have a different view. However, in the absence of that, I believe that we then have to look at what has been a developing process in the United Kingdom.
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I think that it is broadly unacceptable to say that we still operate under the 19th century Diceyan view of this Parliament. That no longer represents the reality of this place’s role in our governance arrangements and is no longer relevant in reflecting the view of the sovereignty of the people. If this was the case and the Diceyan view was so strong, I have been wondering during our hour or so of discussion why we are having a European Union referendum at all. Why does not Parliament simply decide what our future relationship with the European Union will be? However, there is a recognition that the sovereignty of the people is now supreme. Perhaps that has come about because of the European Union. We were all subjects before the advent of the Maastricht treaty. Indeed, some have had considerable difficulty recognising the fact that under that treaty we are citizens and not purely subjects.
Where else do we look? My noble and learned friend Lord Wallace of Tankerness referred to the Statute of Westminster 1931, which ceded powers from this Parliament. It is inconceivable that we would simply now believe that the authority of this place over the dominions can somehow be reconstituted. Why is that the case? It is perfectly clear that we have case law for this. The noble and learned Lord, Lord Hope, referred to one of his judgments when he sat on the Bench. I refer to another one which I referred to in the devo plus report that I authored in 2012, long before the referendum. The noble and learned Lord, Lord Hope, quoted from paragraph 102 of the judgment of the noble and learned Lord, Lord Steyn, in Jackson v the Attorney-General relating to a challenge to the Hunting Act 2004. The noble and learned Lord, Lord Hope, said:
“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless,
the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created the principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism”.
I think that is a very fair judgment and observation to make. The noble and learned Lord, Lord Hope, continued in relation to paragraph 104 of the same judgment:
“I start where my learned friend Lord Steyn has just ended. Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified”.
Therefore, the question is: how are we qualifying? What is the way forward, taking into consideration the changes to Diceyan theory, changes that have come about from our acceptance that the people are sovereign, and changes from the fact that we now operate under two legislatures and two spheres of primary legislation? So we now have practice. We now have the judicial view not only of Diceyan approach but the standing of institutions—this Parliament and the Scottish Parliament —and we have acceptance of the sovereignty of the people. If that is the characterisation of the institutions themselves—democratic, enduring, their legislation trusted as a result—I have no difficulty with there being a recognition that the Scottish Parliament as an institution, and the Scottish Government formed within it, should be permanent fixtures of our constitution, and their standing recognised. That is consistent with the trend we have been developing.
Is it the end result? I hope that the end result will be a more codified, United Kingdom-wide written constitution and then perhaps a new Act of Union containing a new statement of union. That will be the missing factor, but I find it inconceivable, as my noble and learned friend said, that the Scottish Parliament would not be a permanent part of that factor. So we should go ahead and allow the Bill to stand without Amendment 1.