My Lords, I make it clear at the outset that we support the wording provided in his amendment by the noble and learned Lord, Lord Hope. Indeed, we agree very much with the noble Lord, Lord Cormack, that the word “normally” seems at best unhelpful in legislation.
Our first two amendments, Amendments 9 and 10, provide for the consent of the Scottish Parliament to be required when UK legislation makes or attempts to make any alteration to the legislative competence of the Scottish Parliament or the executive competence of the Scottish Government—Scottish Ministers. The amendments would ensure that the current convention is fully reflected in the way it has been understood and applied in practice.
The part of the convention currently covered by Clause 2 is effectively only half of the convention. It is to apply when UK legislation makes provision for issues which are within the legislative of the Scottish Parliament. As has been stated, Clause 2 reflects almost exactly the words used by Lord Sewel in the House of Lords during the passage of the Scotland Act on 21 July 1998, when he said that,
“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.—[Official Report, 21/7/1998; col. 791.]
These comments in this Chamber effectively recommended the establishment of a convention but it has operated more widely than he indicated or anticipated. We should not blindly follow his words in 1998 rather than the convention as it works now. The constitutional practice of putting forward a legislative consent Motion where the legislative competence is being affected, amended or altered was applied, for example, to the Scotland Act 2012, and there are good constitutional reasons for both elements of the convention to be safeguarded. That should be the correct constitutional approach to the Scottish Parliament. Legislation which without consent reduced the scope of the Scottish Parliament’s legislative competence, would be just as controversial, and perhaps more so, than UK legislation which encroached on matters within its competence.
How long has the convention operated in this way? Since 1999, the convention has been understood to require the consent of the Scottish Parliament when UK legislation will alter the legislative competence of the Scottish Parliament or the executive competence of Scottish Ministers. This was exactly how it was expressed in the memorandum of understanding that was agreed between the UK Government and Scottish Ministers back in 1999. It is also reflected in Devolution Guidance Note 10, which was issued by the Department of Constitutional Affairs back in 1999 and gives information as to how the UK Government operate the convention in practice—and that is how it has been operated.
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The Smith commission recommended that the convention should be put on a statutory footing. Do we think that the Smith commission had in mind the words of Lord Sewel in 1998 in this Chamber, or do we think it had in mind the convention as it has operated every day of every month of every year between the Scottish Parliament and Scottish Ministers and the UK Government and UK Ministers since 1999? I think the answer is very obvious, and it is bizarre that the approach taken in the legislation by Ministers in Committee has been supported and defended in the way that it has. It would be so easy to make this change and to introduce the amendment put forward by the noble and learned Lord, Lord Hope. It would change nothing; it would simply reinforce and strengthen the convention as has been requested by the Smith commission.
The other amendment that we have put forward, Amendment 13, is designed to prevent Clause 2 being subject to litigation in the courts, which has also been touched upon. During the debate on 8 December last year there was a very healthy and informative exchange between the noble and learned Lords, Lord McCluskey, Lord Hope and the Advocate-General—all of them learned, so I will not try to rank them—as to the extent that Clause 2 could give rise to court action concerning UK Parliament legislation that had been passed with or without the consent of the Scottish Parliament. Clause 2 creates uncertainty as to whether or not it is justiciable. There would be a real risk of an attempt to challenge the validity of future UK legislation on the basis that the legislation does not comply with Clause 2, and we recognise that risk. There may be a variety of views as to how the courts would answer any such challenges that might be made. However, the advice that we received from the Law Society of Scotland is clear: first, that it is undesirable that Clause 2 should give rise to legal uncertainty of this kind from the outset; and secondly, that to avoid legal uncertainty it is important that an express provision be made, to put beyond doubt that the provision currently inserted by Clause 2 is not intended to have its application subjected to the jurisdiction of the courts.
Our amendment follows exactly the wording of the Parliament Act 1911. I believe it is worthy of careful consideration and, indeed, of implementation. I hope that the Minister will on this occasion respond positively to these constructive suggestions on these matters.