My Lords, I am extremely grateful to all those noble and learned and noble Lords who have supported my Amendment 7. I am also extremely grateful to the noble and learned Lords, Lord Mackay of Clashfern and Lord McCluskey, for the points they made in support of Amendment 12, which in a way hangs together with it, because they have identified a crucial issue before us.
With all due respect to the Minister, he cannot get away with simply declaring that the “issue” is not justiciable. He has chosen the word “issue” as meaning something different, but the same point arises. The noble Lord, Lord Lester of Herne Hill, identified the point precisely: there is a crucial difference between
the position of Parliament legislating—and Ministers declaring what words mean when they legislate—and the position of the courts. The courts will assert their right to interpret legislation according to the meaning of the words as they judge them to be. As the noble and learned Lord, Lord McCluskey, has said, the courts cannot close their door to arguments. People will bring arguments before the court, and when an argument is before the court it has to decide on it. The Minister simply cannot get away with the idea that we can be assured that this issue will never be before the courts and require determination.
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That identifies a point of great difficulty before the House this evening. We are being invited to accept legislation which has uncertainty built into it, with all that that means. As the noble and learned Lord, Lord Mackay of Clashfern, said earlier, one of the great strengths of legislation passed in the Westminster Parliament is that it has never been doubted that the courts cannot question that legislation. Their duty is to give effect to it. But once one writes in a clause such as Clause 2, it opens the door to the kind of challenges which give rise to uncertainty and all the difficulties that an Executive face in giving effect to legislation.
Although the Opposition have not really expressed it in quite these terms, hanging over this whole debate is the question of timing. As most of us know, on 23 March the Holyrood Parliament goes into Recess before the Scottish elections and at some date before then, or maybe on 23 March, it will have to pass a legislative consent Motion to give effect to the Bill we are discussing. Time is slipping past rapidly—there is less than four weeks to go.
I can understand the concern of both Front Benches that legislation should not be held up by any risk of ping-pong between the two Houses. There is of course one way to solve this. It is for the Government, who have a majority in the other place, to accept an amendment or move a government amendment which seeks to resolve the problem we have been discussing. I can see that there are dangers in a Government being asked to support an amendment which has come through against their wishes in this House. They would no doubt seek to overturn it in the House of Commons. However, the responsibility ultimately rests entirely on the shoulders of Ministers to give effect to the points that have been made so carefully and fully by various noble and learned Lords in all parts of the House. It is their responsibility to avoid the risk of uncertainty which hangs over this clause.
I have thought very carefully on whether I should seek to divide the House and I have decided that it would be better to give the Government further time to consider this issue. I give notice that I will come back to it at Third Reading because it is so important. We really cannot allow it to slip by without further consideration. I stress that the responsibility is on Ministers’ shoulders; they control this issue. There is of course the question of whether the Scottish Parliament will accept a measure which does not give effect to paragraph 22 of the Smith commission agreement. It may judge that the clause does not meet the terms of the agreement.
In a way, that is not the really crucial point: it is whether we can accept a measure which will have a cloud of uncertainty hanging over it for all sorts of constitutional reasons. It is surely the Government’s responsibility to solve that problem one way or the other. I am sure that many Members of this House would be willing to discuss this further with the Government to see whether it can be solved. I will not therefore press my amendment to a vote this evening— but on the basis that we have not left the argument, which is still there to be addressed. It is for the Ministers to face up to that and, I suggest, to come back to the House at Third Reading with an appropriate amendment to remove the uncertainty in the interests of everybody. For these reasons, I beg leave to withdraw the amendment, subject to the caveat which I have made as clear as I possibly can.