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Scotland Bill — Committee (5th Day)

Part of the debate – in the House of Lords at 6:00 pm on 21st March 2012.

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Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office) 6:00 pm, 21st March 2012

My Lords, I am grateful to my noble friend Lord Forsyth for his amendment. He obviously had great prescience in tabling it because it has been debated today when a Written Ministerial Statement has been brought forward paving the way for a legislative consent Motion. As the noble Lord, Lord Browne of Ladyton, made clear, that is what it does-it paves the way for a legislative consent Motion, and it will be a matter for the Scottish Parliament to determine whether to pass it. However, as the noble Lord, Lord Foulkes, indicated, he would be rather surprised if the majority party in the Scottish Parliament did not take the lead from its leader.

I was asked by the noble Lord, Lord O'Neill, for more details. I have not held any direct negotiations with the First Minister on these matters. My right honourable friend the Secretary of State has been primarily responsible for the negotiations involving individual Scottish Ministers. The Written Ministerial Statement sets out the agreement that has been reached and we should be happy to provide further details to facilitate debate on Report. I had already indicated as much with regard to the Holtham proposals. Clearly, if other issues need to be raised, it is only right that I should facilitate that debate. As I think was acknowledged in our short debate before agreeing to go into Committee, a considerable amount of hard work was done to ensure that that agreement was concluded and, in turn, to ensure that that happened before today's debate.

It is difficult for me to make other arrangements while I am here on the Front Bench, but I am more than willing-even at the conclusion of our discussions this evening-to meet noble Lords to arrange for briefings on paper, and perhaps to see what other briefings between Members of your Lordships' House and relevant officials could be facilitated, so that when we come to Report or Third Reading, when there may be a bit more time, your Lordships will be properly informed and briefed.

I certainly pick up the point made by the noble Lord, Lord Browne, that Members of the House of Commons have more than a legitimate interest in these matters, because if this House chooses to pass amendments-and the Government will be bringing forward amendments to reflect some aspects of the agreement that require changes to the Bill-they will also have to be considered in the House of Commons. I certainly want to facilitate such discussions as best I can and, if it is thought suitable-and it is not at a ridiculous hour, which I hope it will not be-I shall be more than happy to meet anyone who wishes to have a preliminary discussion at the end of our proceedings today about how those discussions might best be achieved.

It has always been the Government's intention to secure a legislative consent Motion from the Scottish Parliament in favour of the Scotland Bill, and it goes without saying that we are pleased that we were able to do that in terms of changes to the Scotland Bill and supporting non-legislative arrangements, and that the Scottish Government have also tabled a legislative consent Motion in support of the Bill. It includes finance and non-finance changes. I believe that these changes meet the tests that my right honourable friend the Secretary of State indicated were important, and by which this Government have set store, for any changes to the Bill package-namely, that they are based on evidence, maintain the cross-party consensus that supports the Bill and will benefit Scotland without detriment to the rest of the United Kingdom. We have gone further than in any other Bill in working between parties in Scotland and across the United Kingdom to build on a cross-party consensus. We have carefully considered and-where appropriate and where the case has been properly made-we have taken on board the views of the Scottish Government and Scottish Parliament. This has allowed an agreement to be reached.

My noble friend asked about the legislative consent Motion, and the position was also reflected in the contribution of my noble friend the Duke of Montrose. It may be useful if I say something about legislative consent Motions in the absence of the noble Lord, Lord Sewel, who I am sure would be able to correct me if I got it wrong. During the passage of the Scotland Bill through your Lordships' House, the noble Lord, Lord Sewel, 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".-[Hansard, 21/7/98; col. 791.]

It is a convention; it is not law. The words "not normally" are there. An example occurred earlier this Session when the Scottish Parliament passed a legislative consent Motion objecting to parts of the Welfare Reform Bill. The Scottish Parliament consented to some parts that were within devolved competence and rejected other parts that had implications for Scottish Ministers. The United Kingdom Government-probably one of my noble friends from this Dispatch Box-moved amendments to excise those parts from the Welfare Reform Bill.

The statement made by the noble Lord, Lord Sewel, has been supplemented in a devolution guidance note and is now in the Memorandum of Understanding with devolved Administrations. I have one here from November 2005, issued by the Department for Constitutional Affairs, which states:

"The convention applies when legislation makes provisions specifically for a devolved purpose. It does not apply when legislation deals with devolved matters only incidentally to, or consequentially upon, provision made in relation to a reserved matter, although it is good practice to consult the Scottish Executive in these circumstances".

There is an important distinction between a convention and a Section 30 order. A number of different orders can be promulgated under the Scotland Act 1998. Indeed, there is a schedule with headings (a) to (j)-possibly more-that state the procedures and processes in respect of each order. I know that noble Lords have had debates in the Moses Room on Section 104 orders, which very often relate to when the Scottish Parliament is unable to give full expression to its legislative proposals because they may well have non-controversial implications for matters or bodies that are reserved. After working with the United Kingdom Government, it is possible to bring forward an order that can then give full effect to such proposals. We recently considered such an order with regard to social housing. There are a number of examples. These are matters of law, and a Section 30 order is used to transfer or make changes to Schedule 4 to the Scotland Act. Schedule 5 sets out the specific issues that are reserved under that Act. A Section 30 order requires the consent of the House of Commons, the House of Lords and the Scottish Parliament. It is not a convention. If the Scottish Parliament withholds its consent, a Section 30 order cannot pass. That is why it has legal effect in a way that the Sewel convention does not.