My Lords, perhaps I may begin with a material concession. When the noble Lord, Lord Empey, referred to a capable Minister on the Front Bench he was clearly referring to my noble friend Lord Dunlop.
I thank noble Lords for their careful and detailed consideration of Clause 1, which expresses in law the understood position that the Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements. I will endeavour to respond to each of the points made and, in doing so, I thought that it would be helpful to reflect on the adjustments made to this clause during the Bill’s passage through Parliament.
The Smith commission said that the United Kingdom’s legislation,
“will state that the Scottish Parliament and Scottish Government are permanent institutions”.
In the draft legislation which the Government published in January 2015, the Scottish Parliament and the Scottish Government were recognised as permanent parts of the United Kingdom’s constitutional arrangements. At that stage, the clause did not contain a provision on a referendum. This drafting was retained when the Bill was introduced to Parliament in May 2015. Detailed feedback was then received on the clause during the Bill’s passage through the other place and from others such as the Scottish Parliament’s Devolution (Further Powers) Committee. The Government reflected carefully on this feedback and on 18 September, the Prime Minister announced the Government’s intention to include a referendum provision in the clause to strengthen the provision and underline our commitment to the Scottish Parliament and the Scottish Government. Following refinement of the drafting, the clause as it now appears was inserted into the Bill on Report in the other place.
I pause to observe in response to the observations of the noble and learned Lord, Lord McCluskey, that I am not aware of any understanding between the United Kingdom Government and the Scottish Government to the effect that no amendment will be allowed to the provisions of Clause 1 or to any other part of the Bill. The clause was also subject to substantial debate during our Committee in December.
I turn to Amendment 2, tabled by the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Norton of Louth. This amendment considers the specific wording of subsection (3) of the new
section in Clause 1. Following our deliberations in Committee we have reflected carefully on this amendment, which I believe seeks to clarify details of the operation of such a referendum. None the less, our view remains that the current wording of the clause delivers the outcome needed effectively, as it reflects that in 2014 the people of Scotland voted to remain in the United Kingdom and that that would mean a commitment to two Parliaments. New subsection (3) ensures that if the Scottish Parliament and Scottish Government were ever to be abolished, which of course is a scenario that no one is envisaging, the people of Scotland would need to vote in a referendum to that effect.
The noble Lord, Lord Cormack, spoke to Amendment 3, which would replace the requirement for a decision of the people of Scotland in a referendum with a requirement for a two-thirds majority in a vote of the House of Commons, in which 75% of Scottish Members of Parliament voted in favour. I am grateful to the noble Lord for the points he has made and recognise his desire to underline the centrality of this Parliament in determining the constitutional arrangements of the United Kingdom. However, it remains our view that it is right to include provision for a referendum of the people of Scotland in the clause to strengthen the political statement, and to underline the commitment of this Parliament and this Government to the Scottish Parliament and the Scottish Government.
The referendum provision rightly reflects the importance of the people of Scotland in determining Scotland’s constitutional future. In the referendum in 1997, the people of Scotland overwhelmingly supported the creation of a Scottish Parliament. In the independence referendum in 2014, they reaffirmed that they wanted to have two Parliaments by voting to remain within the United Kingdom.
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Although the abolition of the Scottish Parliament and Government has never been envisaged, it is right that if it were ever to be, it should be on the basis of a decision of the people of Scotland. It is important to be clear there are no circumstances in which the abolition of the Scottish Parliament and Scottish Government is envisaged. People in Scotland voted for two Parliaments, and that is what they shall have. However, in responding to these points, I would state that, in this entirely hypothetical circumstance, this Parliament would of course play its full and proper role, just as it did in the establishment of the Scottish Parliament in 1998. That was of course a matter that we addressed in some detail in Committee.
Amendment 6, tabled by the noble Lord, Lord Norton of Louth, would replace Clause 1 in the Bill with a new clause which would provide for a referendum before the Scottish Parliament and Government could be abolished and define those eligible to vote in such a referendum as those entitled to vote in local government elections in Scotland. As a number of noble Lords noted during our debate in Committee, we are dealing in entirely hypothetical circumstances. Such a referendum is not envisaged, but in those hypothetical circumstances, the precise detail of such a referendum would of course have to be determined, as is the case with any referendum, if such a scenario were ever to occur.
The proposed new clause also seeks to acknowledge concerns raised by some noble Lords in Committee with regard to the wording and effect of the clause. It states that the sections of the Scotland Act 1998 establishing the Scottish Parliament and Scottish Government will not be repealed unless electors in Scotland vote for this in a referendum, and does not directly reference the permanence of the Scottish Parliament. We have carefully reflected on these points since Committee, and our view remains that the clause as drafted is appropriate. The Smith commission said:
“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”.
We consider it important that the clause reflects the language of the Smith agreement, in order to underline the political statement being made. I emphasise, as has been acknowledged by your Lordships, that it is a political statement. The purpose of the clause is to reflect in legislation the political understanding which already exists. It is our view that Clause 1, as drafted, benefits from this straightforward, unambiguous statement, in keeping with Section 1 of the Scotland Act 1998, which states:
“There shall be a Scottish Parliament.”