My Lords, I am obliged for all the contributions from your Lordships in respect of this matter. I will not seek to repeat the arguments that were rehearsed so fully in Committee and on Report but I wish to make some observations.
The Smith agreement was explicit in its reference to putting the Sewel convention on a statutory footing, and that is what has been done—essentially as the noble Lord, Lord Stephen, noted—in a declaratory sense.
Mention has been made repeatedly of the case of Pepper v Hart. I am not going to go there in any detail, but the starting point for that case is ambiguity. A number of noble Lords indicated that there was no ambiguity. I am inclined to agree with that—but not necessarily for the same reasons. However, it appears to me that if there were room for ambiguity then of course Pepper v Hart might come into consideration.
Reference was made to the LCM—the legislative consent Motion—process and the suggestion that it should be incorporated into the clause. With respect, the LCM is a process of the Scottish Parliament, not of this Parliament—it is what the Scottish Parliament does in response to us applying the Sewel convention—and therefore it would not be appropriate to bring it into Clause 2.
There is then the question of what is or is not a devolved matter. This point—and indeed the difference that I have with the noble and learned Lord, Lord Wallace—is perhaps highlighted by the amendment that he originally proposed. The last part of that amendment says:
“For the purposes of subsection (8), the words ‘devolved matters’ means any matter not reserved to the United Kingdom Parliament under this Act”.
With respect, the Scotland Act 1998 is a great deal more sophisticated than saying that all matters listed in Schedule 5, which are reserved, are the only matters not requiring the consent of the Scottish Parliament. It entirely ignores the fact that, for example, it is not within the competence of the Scottish Parliament to modify any of the protected enactments listed in Part 1 of Schedule 4 to the Scotland Act.