My Lords, I join other noble Lords in thanking the noble Lord, Lord Lisvane, for securing this timely debate. In the past week, the business of the House and the other place has been taken up almost entirely by considering fairly fundamental aspects of the governance of this country. Some may think that this has been fine and has not caused great disruption, but considering that it has meant reviewing all possible methods of bringing about constitutional change, it was bound to give new life to all the arguments about further reforms in our constitutional settlement.
As emphasised by the noble Lord, Lord Empey, that is particularly true for Scotland. This subject has a long history, of course, in which I always take an interest even if for no other reason than so many of my direct ancestors have been personally involved. Depending on your view, my family can be either credited or blamed for much that has happened in Scotland throughout her history. We were one of the signatories of the Declaration of Arbroath in 1320, resisting the pretensions of Edward I. A little later, a member of my family known as the 1st Marquis was one of the first signatories of the Scottish Covenant in 1638, objecting to the impositions and taxes of Charles I. Then, in 1707, as President of the Council in the Scottish Parliament, we oversaw the passing of the Act of Union and the financial and economic benefit that stemmed from that. Even more recently, I could consider my grandfather, who got into a spot of bother in 1932 for suggesting that Scotland should benefit from an element of devolution similar to what we have today.
So I have followed in great detail all the devolution legislation that has come through this House. Once the original Scottish devolution Act had been passed, those who put it together adopted as their mantra that devolution is not an Act of Parliament but a process. From day one, the practical rules have been subject to tweaks, adjustments and memoranda of understanding. No doubt this has been a great boon to the civil servants involved and those in the Scottish Government for their daily workings, but it has probably worked quite well even for the Scottish Parliament. However, what I feel has been missing is any chance for the UK legislature to consider whether these things suited the settlement that Scotland had within the UK and the interests of the UK Parliament at the time they were introduced. We have of course considered them when we have periodically reconsidered the Scotland Act, but that has been very much later.
There are a number of issues over which there is current contention. I wonder if there is any way that my noble friend the Minister can give us an indication of the grounds on which the Government are pursuing the case in the Supreme Court. This seems to be a question of the competence of the Scotland Act 1998 as regards the devolution of powers over agriculture and fisheries that were, and still are, the responsibility of the European Union. Section 29(2)(a) of the Act states:
“A provision is outside that competence”— of the Scottish Parliament if—
“it would form part of the law of a country or territory other than Scotland, or confer … functions exercisable otherwise than in or as regards Scotland”,
which at the present moment still applies to both fisheries and agriculture. For the outcome, we will have to wait for the judgment of the court, but the noble Lord, Lord Lisvane, has put his finger on a vital component which is needed: we need respect from both sides and it applies in both ways.