My Lords, it seems that the Government had an important decision to make on this issue. Did they want the Sewel convention, or the legislative consent convention as it has now become known, at least in the Scottish Parliament, to continue as a convention or did they want to convert it into statute? In truth, the answer is that they are making a mess of that decision. In a sense they are trying to do both, and in doing so they are creating bad legislation. They are continuing the convention—we have been told that and I certainly hope that that is the case. I hope that all legs and all elements of the convention will continue to be operated between the Scottish Parliament and the UK Parliament, the Scottish Government and the UK Government. But the Government have decided to take one rather limited and narrow—although, I accept, important—part of the convention into statute, and to do so in as limited and as loosely worded a way as possible, with words such as “normally” and with new expressions such as “devolved matters” that have not previously been used or defined in statute.
I now believe that the use of these words and the introduction of this vagueness has been quite deliberate on the part of the Government, to make it as ill-defined and declaratory as they possibly can. Why are they doing that? They are doing it to technically comply with the Smith commission’s recommendations, but this is not in the spirit of the Smith commission and it is not being done in a clear, sensible or coherent way. In summary, it is not a good way to legislate. If the Government’s excuse is that this is what the Smith commission told them to do, frankly, that is not a good enough excuse, because they can depart from the Smith commission—they have done so on the issue of abortion, for example—and the Smith commission was not perfect in every respect. On this issue it referred to only part of the Sewel convention—a mistake that I think the commission would readily admit to.
We should therefore try to get this right in legislation. When the UK Parliament legislates on devolved matters, we should refer not only to the Scottish Parliament but to a situation where consent is given by the Scottish Parliament to the UK Government altering the legislative competence of the Scottish Parliament or the executive competence of Scottish Ministers, because that is the full legislative consent convention. Is that serious? Yes, I believe that it is. The noble Lord, Lord Norton of Louth, who is the constitutional expert on these matters—not only in the Conservative Party but, in many respects, for the whole of this Chamber—highlighted the problem in Committee, saying that,
“I am quite clear that we really cannot proceed with Clause 2 as presently worded. As I say, either we have a convention or we have legal certainty in statute. I do not think we can try to have both”.—[Hansard, 8/12/15; col 1495.]
Yet that is exactly what the Government are trying to do. There has been no change whatever from the Government: no variation, no compromise and no amendment.
Since the Second Reading debate on
“I think that ‘Devolution Guidance Note 10’”— which, we should remember, is a 1999 devolution guidance note, so the UK Government have been somewhat slow to catch up—
“has to continue to apply, because it specifies a convention that applies regardless of what the law says. If we are to reduce conventions to law, it would certainly help if we did so fully and not just partly”.
I hope that those words from the professor echo some of the comments I have already referred to, in particular the words of the noble Lord, Lord Norton, because this is exactly the point the noble Lord made. It was also made by my noble and learned friend Lord Wallace, and by the noble and learned Lords, Lord Hope and Lord Mackay. My noble friend Lord Steel, a former Presiding Officer of the Scottish Parliament, has confirmed the same point and it is my point, too.
In its conclusions and recommendations the Scottish Parliament Committee stated that the UK Government’s approach, as currently drafted, has,
“the potential to weaken the intention of the Smith Commission’s recommendations in this area”.
It wished all strands of the convention to be covered by the Bill and noted its disappointment at the lack of a response from the UK Government on this issue. It regretted that no changes have been made by the UK Government. It stated its view, which is shared by the Scottish Government, that the Scotland Bill still falls short and that this failure to fully incorporate into statute all strands of the legislative consent convention, as set out in Devolution Guidance Note 10, will only cause difficulties in the future.
That is also the view of many noble and learned Lords from around the Chamber. Some of them have considerable parliamentary and ministerial experience; others have very considerable legal and judicial experience. But sadly the Government, of course, know better, and we find ourselves where we are today.