My Lords, following on from the noble and learned Lord, Lord McCluskey, it was with some considerable regret that I agreed not to move Amendment 2, part of which I shall come back to in a moment. I welcome the Minister’s statement as far as it goes, which is not very far. I agree with the noble and learned Lord, Lord McCluskey, that it is an attempt at a sort of Pepper v Hart statement, but I make two observations on that. First, for Pepper v Hart to come into play, there has to be an ambiguity that has to be resolved. If, in fact, there is no ambiguity—and I am not sure whether the absence of something that has been debated in Parliament and expressly rejected by the Government could amount to an ambiguity as they have made it very clear that they do not wish for Devolution Guidance Note 10 to be part of what is on the statute book—I am not sure that Pepper v Hart would come into play.
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Secondly, the point would be conceded that there would be litigation. It may be litigation that the Government could conceivably win. Who knows? Once the genie was out of the bottle and the case was in court, a number of things could happen, which is the why the amendments, which have been debated previously—the amendment which the noble and learned Lord, Lord McCluskey, put down for today but has not moved and the amendment in my name and that of my noble friend Lord Stephen—make it very clear that the application of this clause,
“shall not be questioned in any court of law”.
That would have settled it. It would not even get to the stage of a case being raised. The wording that we used was taken from the Parliament Act 1911, and 105 years is reasonably good test of time as to its effectiveness.
I note what the noble and learned Lord, Lord Keen, said about “normally” and that he said that the exercise of the legislative consent Motion will continue exactly as before, but I want to push him to be even clearer, because by using the words in the statute, which were used by Lord Sewel in 1998, the implication must be that that is all that is covered by the statute in fulfilment of the Smith commission recommendation. In fact, the Government seem to be trying to take this as narrowly as they can.
Therefore, it is arguable that we have a two-tier legislative consent Motion convention. There are the Sewel words, which are in statute, and the provisions that have triggered legislative consent Motions since the outset of the Scottish Parliament, and are found in Devolution Guidance Note 10, which are not in statute. Does Clause 2 have legal meaning? In which case, does the Minister accept that there are two tiers of legislative consent Motion? What are the implications of that? Or is Clause 2 legally meaningless, a bit of legislative window dressing, in which case why have we spent so much time debating it? Will he clarify which it is? Is this meant to have some legal meaning or not? If the courts were asked about this, it is not unreasonable for them to think that Parliament, having spent hours debating it, meant something to be said. How does he expect that would be interpreted?
Will the Minister address the concerns that have been reflected in the evidence to the Devolution (Further Powers) Committee of the Scottish Parliament, which produced its final report on the Scotland Bill on 11 March? These concerns reflect the interaction between legislative consent Motions and future legislation on the repeal of the Human Rights Act and the possible establishment of a British Bill of Rights. There was some concern that the Government might be trying to provide themselves with a loophole to get out of any means to get the Scottish Parliament to agree to things they might bring forward in their much-heralded and long-awaited reforms to human rights legislation.
Indeed, in May last year at the launch of the report by the Bingham Centre for the Rule of Law, A Constitutional Crossroads: Ways Forward for the United Kingdom, the very distinguished Professor Adam Tomkins, who was a member of the Smith commission and advises the Secretary of State for Scotland on constitutional matters, speculated whether a legislative consent Motion would be needed in the Scottish Parliament to repeal the Human Rights Act, but appeared very clearly to take the view that if any British Bill of Rights contained new rights infringing on the Scottish Parliament’s legislative powers or Scottish Minister’s executive powers, a legislative consent Motion would be required, no doubt by reference to Devolution Guidance Note 10.
The Minister can make it very clear and allay all these concerns from the Dispatch Box in the next few minutes by saying that it is certainly not the Government’s intention to, as it were, thwart the Scottish Parliament having a legislative consent Motion if one were required under DGN10 in the event of a British Bill of Rights that would confer new responsibilities within the legislative competence of the Scottish Parliament or new legislative responsibilities on the executive competence of Scottish Ministers. These matters may not lead to litigation, but they could well do. In recent times, we have seen that the Trade Union Bill and the Immigration Bill, both currently before your Lordships’ House, have produced disagreements between the Scottish Government and the United Kingdom Government, so the question is by no means academic.
The final point, which is a new one, is on the words “devolved matters”, which appear in this clause. We are particularly disappointed that the clerks did not
see fit to think that this fell within the rules for Third Reading. I certainly give notice that I will take this to the Procedure Committee, because if something happens between Report and Third Reading, surely it is reasonable that the House has an opportunity to consider it. What has happened here is that we have had the final report of the relevant Scottish Parliament committee, which specifically recommended that the words “devolved matters” should be clarified. It says:
“Furthermore, the Committee also seeks clarification from the UK Government on the legal meaning of the term ‘devolved matters’”.
I think I am right in saying that those words do not appear anywhere in the Scotland Act at the moment. Reserved matters are defined in Section 30(1) and by reference to Schedule 5, but of course there are other matters not within the competence of the Scottish Parliament that Section 29 of the Scotland Act sets out, and in so doing it brings in Schedule 4 of the Scotland Act. I would be interested if the Minister took this opportunity to give us a very clear understanding of what the Government mean when they use the words “devolved matters” in the Bill. It is a term that, as I understand it, has no legal definition at the moment, yet it clearly could be of some importance. I am sure that the Minister will welcome an opportunity—albeit that he could not do it in response to an amendment—to help the House by defining what the Government mean by “devolved matters”.
In conclusion, it is very regrettable that the Government have made no attempt whatever to move on these issues, despite some very compelling arguments. These are serious matters that are ripe for some constitutional conflict. If that happens, the Government have brought that upon themselves.