Devolved Administrations: 20th Anniversary - Motion to Take Note

Part of the debate – in the House of Lords at 5:44 pm on 22nd May 2019.

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Photo of Lord Hope of Craighead Lord Hope of Craighead Convenor of the Crossbench Peers 5:44 pm, 22nd May 2019

My Lords, I am grateful to the noble Lord, Lord Bourne, for his comprehensive introduction to this debate, covering the development of devolution across all parts of the United Kingdom and paying attention to the particular problems of how England fits into a structure that has been designed elsewhere.

I wish to say a bit about the legislation that was put together to create a reliable vehicle for this major alteration to our constitution. I should explain that my qualification for speaking is that I was involved in the legislative process in this House from the very start. I was one of the 40 or so hardy souls who worked late into the evening as the Bills were going through this House. Despite our protests, devolution always seemed to be taken as last business—and when I say that, I mean very last business. The Scotland Bill, which was my main concern, was given eight days in Committee, but the time allotted to us each evening was from around 10 pm onwards, so we were struggling with the need to complete the work while also finding time to sleep. I am not exaggerating—I am recorded in Hansard as speaking on the Scotland Bill at 2.30 am on one of those days. That was not the time at which we rose that night, and it was not the only time that we sat until the early hours.

That is one side of the picture. The other side is my interest in the legislation when sitting as a judge in the Appellate Committee of this House, in the Judicial Committee of the Privy Council and in the UK Supreme Court. Issues were brought before us such as whether the Scottish Parliament or Members of the Scottish Government, including the Lord Advocate, were acting within the powers that had been devolved to them; and, at a later stage in two cases that came before us, whether the Welsh Assembly had acted within the powers that had been devolved to it. I can claim credit for being the first judge to use the expression “Welsh law”, because it seemed to me that that was indeed what was developing at the time, and to my great pleasure it has developed much further since. This means that I was able to see how the system was working in practice.

Perhaps I may concentrate on the Scotland Act 1998. I agree with the word used earlier—challenge—because designing this legislation was a remarkable achievement. The political inspiration for Scotland came from Donald Dewar. I shall always remember his pride in the wording of Section 1(1) of the Scotland Act, which declares:

“There shall be a Scottish Parliament”.

He loved those words and he repeated them several times. But the architect was an exceptionally able civil servant in what was then the Scottish Office in Edinburgh, named Iain Jamieson. It was his scheme and it was built on three pillars around which the necessary machinery was constructed. The first pillar, of course, was that devolved competence was to be limited to the territory of Scotland and to functions exercisable in or as regards Scotland. The second—also a very important point—was that the sovereignty of the United Kingdom Parliament was to be respected, and a provision was included in the Act in those very terms. The devolution of powers to the Scottish Parliament was therefore not to affect the power of the UK Parliament to make laws for Scotland. Obviously, a balance was going to have to be struck in practice. The third pillar was that our international treaty obligations were to be respected, so it was to be outside competence to do anything incompatible with any of the rights set out in the European Convention on Human Rights or with Community law, which we now call EU law.

On that last point, Iain Jamieson was fortunate in two respects. At the same time as we were considering the devolution legislation for all three nations, Parliament was also being asked to approve the Human Rights Bill. That Act, as it became, was the outstanding achievement of the noble and learned Lord, Lord Irvine of Lairg, during his time as Lord Chancellor. It received its Royal Assent on 9 November 1998. Royal Assent to the Scotland Act followed 10 days later. As far as the Scotland Act was concerned, the work needed to bring human rights home—as it was put—was already being done. All that was needed in the Scotland Bill was to cross-refer to that other Bill.

As it happened, human rights came home to Scotland more than a year before England. The commencement date for Scotland was 1 July 1999. It was thought that England and Wales were not ready for such a revolution and that more time was needed for preparation, so the commencement of the Human Rights Act—which applies it all to England and Wales—was put off until 1 October 2000. But no one in Scotland seemed to mind. Unlike the adventure of the poll tax, which was introduced there first, Scotland did not seem to mind getting human rights in advance of anywhere else.

The second respect in which Iain Jamieson was so fortunate, as is now plain to see, was in regard to Community law. All he needed to do was to say what that expression meant. He did not have to wrestle with how to define Scotland’s place in a single UK market, because we were already within the European Community.

I think it right to say that he was also fortunate he was not asked to provide for a second chamber. This point was raised when the noble Lord, Lord McConnell, was giving his lecture in the Robing Room last week. At the end of his excellent lecture he was asked whether there should have been a second chamber. His answer was, “No, that would have been to create a republic”. Of course, creating a separate state was not the idea; the aim was intended to be devolution, not a stepping stone to independence.

Jamieson was fortunate in another respect too. In contrast to the earlier attempt at devolution to which the noble and learned Lord, Lord Davidson, referred—which failed because the vote was not big enough—the simple rule to which he was asked to work was that whatever was not reserved to the UK Parliament was devolved. Unfortunately, that was not the situation for Wales. It had to be dragged out of the UK—I remember this so well—step by step, as the noble Baroness, Lady Randerson, described, until eventually we have something fairly close to what we now have in Scotland, which makes the situation so much more acceptable.

So Jamieson was very fortunate. I remember spending many hours late at night in this Chamber going through the list of reserved matters, because it was so important to get these right. The remarkable thing is that in my time as a judge I can recall only one case in the Supreme Court where we had to examine that structure because it was under challenge, and it survived scrutiny. The scheme of the Act has performed remarkably well over these years.

I remember going to see Iain Jamieson with the late Lord Rodger of Earlsferry to discuss with him some points we thought needed clarification. We were put firmly in our place. He wanted to turn our conversation into a seminar and to explain the provisions we were there to scrutinise. It became clear that most of the passages that we thought were obscure were the result of prolonged and somewhat dogged arguments between him and the parliamentary draftsmen. That meant there was no discernible room for manoeuvre; we simply had to accept the package as it was.

However, in the end we were able to achieve one significant amendment. It was to a clause about the removal of judges, now Section 95. That same clause dealt with appointments, and there was no problem with that. The system was that this could be done by Her Majesty on the recommendation of the First Minister, but the scheme provided for removals to be exactly the same: the First Minister recommends removal and Her Majesty follows that recommendation. There was an objection to this, because the whole idea of convention rights was that the people of Scotland could challenge the Government as acting incompatibly with those. The First Minister and Scottish Government were people whose actions we had to scrutinise and criticise, and it was thought really quite dangerous to give the First Minister the power to direct our removal. So three of us—Lord Clyde, Lord McCluskey and I—eventually carried an amendment by 140 votes to 108 altering the system to provide for proper scrutiny of the removal process. It was to our great relief that the Government gave way on this point.

I do not want to go on too much longer, but there was one problem that we really did not foresee, which arose because of the jurisdiction we had over the criminal appeal court and the actions of the Lord Advocate. One of the consequences of requiring the Lord Advocate to act compatibly with the convention rights was that we found ourselves dealing with issues about disclosure of evidence by the police and the right of an accused person to have a solicitor present during police questioning. Scots law at that time was somewhat behind English law, which had well-developed rules. We had other rules and were fenced in by many checks and balances. In the end we decided in our court that it did not measure up to the rulings of the Strasbourg court on what was necessary to achieve the right to a fair trial. Unfortunately the judges in Edinburgh took strong exception to what we were doing, especially when we exercised the power under our rules to quash convictions. Relations between the Supreme Court and the criminal appeal court in Edinburgh became very tense. In the end the situation was resolved by an amendment in the 2016 Act that confined the Supreme Court’s power simply to determining the issue, leaving the disposal of the case to be decided by the judges in Scotland. That was a sensible scheme that we should have thought about at the very beginning.

Of course, the architecture had one other feature that was not fully developed: the need to work out and respect the devolution system in the working of this Parliament at Westminster. There was the Sewel convention, now reproduced in statutory language in the 2016 Act, but perhaps we should have gone a bit further in developing the rules in that way. That might have saved quite a bit of time.

Overall, I think those pieces of legislation—the 1998 Act for Scotland, the Wales Act as it developed and the Northern Ireland Act—were all remarkable achievements. As in the case of the Human Rights Act, they all say a great deal in relatively simple and concise language. I hope that Iain Jamieson, to whose efforts the Scotland Act owes so much, derived much pleasure in seeing it put into effect.