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Lord Gordon of Strathblane: Before the noble Lord sits down, I wonder whether he would consider rephrasing his amendment to take account of the point to which the Minister referred; namely, paragraph 4.4. of the White Paper which states that there may be instances, such as international obligations, which touch on devolved as well as reserved matters, and it may therefore be convenient for Westminster to legislate for both. If we could narrow Westminster's power to those areas, we might be satisfied on all sides.
Lord Steel of Aikwood: My quick answer to the noble Lord is that I am, as he knows, an eminently reasonable man and I would, of course, be willing to adjust the amendment in that respect. There is no desire on my part to have the Scottish parliament coming into conflict with international obligations in a way that muddies the waters here at Westminster.
Lord Renton: I wish to assure the noble Lord, Lord Steel of Aikwood, that there is no real conflict between us. We have reached a rather extraordinary position. The noble Lord was wise to move his amendment because, obviously under Clause 27, the Scottish parliament is given various powers which will be defined in an adverse and negative way by deciding what matters are reserved and what matters are not. It would frequently be confusing and chaotic if the Scottish parliament legislated in one way and the Parliament of the United Kingdom legislated in a different and conflicting way. To the extent that the noble Lord's amendment would resolve that matter, it deserves serious consideration.
Baroness Carnegy of Lour: Except that this amendment seems to conflict with what the Minister said earlier to the noble Lord, Lord Gordon! It seems to me that something has to happen to subsection (7) or people will simply read it as it is, as did my noble friend Lord Lang at Second Reading in his speech which contained much anxiety about the parliament. My noble friend read out those provisions and they struck me as comprising an extraordinary statement by which ordinary people, if they read it just as it is, will be most surprised.
The sovereignty of Westminster has been maintained by devolving matters to the Scottish parliament. Westminster has devolved that power. It has kept sovereignty. To an extent, the people of Scotland can
However, it turns out that matters may not have been devolved because some matters may be dealt with by both parliaments. The Minister is living in fairyland--he is a politician and I am sure that he knows that--if he thinks that two parliaments of different political persuasions will settle any conflict on such matters by mature discussion. That is not the way that the political world works. The Government must deal with this in some way. I do not know what the answer is but they must do something.
Lord Fraser of Carmyllie: I am not in the least surprised that there was a Division on this matter in another place. This apparently inconsequential amendment reveals a fault line between the Government and other participants in the constitutional convention that is incapable of being reconciled. The sooner that is understood the better and we can reach a proper understanding of what is being put forward in this legislation and its limitations.
If one turns to subsection (7) one finds an unbroken line going all the way back to Professor Dicey and all those who followed his constitutional tradition. This Parliament is reserving to itself the right to make laws about anything and everything in Scotland. It retains the totality of the sovereignty that it presently enjoys. It is saying in an Act of the Westminster Parliament that it will allow these matters to be dealt with in a devolved fashion and it can at any time and in any place alter that. This Bill does not provide a set of entrenched constitutional changes that cannot be changed by Westminster. I do not know whether the Government are particularly pleased by this observation, but I happen to believe that they are right to approach the matter in such a fashion. But it demonstrates the fundamental difference that has arisen in this case.
The noble Lord, Lord Steel, has said repeatedly in this Chamber and elsewhere that in Scotland there is a significantly different basis of sovereignty. To say that sovereignty is vested in the people is rather crackpot constitutional theory. Where else in the United Kingdom is sovereignty ultimately vested other than in the people? Sovereignty is expressed in what happens in the House of Commons and in this Chamber. Sometimes I have very considerable sympathy for the observations of the very great Lord President Cooper in McCormack v. HE Advocate which have been used as a mother-lode for every curious constitutional argument that I have ever heard deployed in relation to Scotland.
I suggest to the Government that they make absolutely clear that Clause 27(7) is the central piece of this legislation that spells out clearly the relationship between the Westminster Parliament and the Scottish parliament. The sooner that is clearly understood the sooner we can set about examining very carefully these most important provisions in the Bill and determine whether the line that the Government have drawn
Lord Hope of Craighead: This was a point to which I attempted to draw attention in my speech at Second Reading. There is a great deal of force in the points that have been raised by the noble and learned Lord, Lord Fraser of Carmyllie. The basic principle as I understand it is that the Parliament at Westminster cannot abandon its own sovereignty. One may even say that subsection (7) is unnecessary because it simply states the obvious. It is absolutely fundamental to the whole arrangement that the Parliament at Westminster can take away what it gives at any time. That must be the basis on which the arrangements for devolution proceed.
Lord Desai: We should make clear that we are intending to devolve power, not create a federation. That is the crucial distinction. Perhaps I may refer again to the constitutional reform debates on India in this Parliament. The Government of India Act 1919 created what was called provincial dyarchy. Some subjects were reserved and some subjects were devolved. What is being proposed is that on devolved subjects the Scottish parliament can legislate but it cannot do so on reserved subjects. However, Westminster can legislate on all subjects. That is the principle of sovereignty. Whatever the Scottish convention may or may not have done, it did not win sovereignty in a battle. There is no war. We are devolving power within the context of Westminster, and therefore Westminster cannot give up any of that power.
Lord Mackie of Benshie: We accept that this Parliament is sovereign, but if it passes an Act devolving power to Scotland it can remove that power only by another Act. This Parliament cannot play games with powers that it has already devolved.
Lord Kingsland: The noble and learned Lord, Lord Hope of Craighead, is absolutely right. The sovereignty of Westminster is inalienable even by Westminster. The question raised by Clause 27(7) is whether we need to say it. We had precisely the same problem with Stormont in 1921. Save for one occasion, which ended almost in political farce, there has been no attempt by Westminster to interfere with the powers devolved to Stormont. Indeed, there has been a rule in another place that matters dealt with by Stormont are not touched upon if they fall within the powers not reserved. Since it is implied in our constitution that Westminster will have the power, if necessary, to pass any enactment it likes in Scotland, whether or not it is
Lord Sewel: I do not believe that it is a matter of socking it to anybody at this stage. This has been an important and valuable debate. The Government's defence of Clause 27(7) is that they believe it is an essential constitutional statement of the nature of the devolved settlement. That is the whole business of devolution as opposed to other forms of constitutional settlements. If we do not recognise that from the start we go down the very seductive path that the noble Lord, Lord Steel of Aikwood, invites us to tread and come close to, if not actually to arrive at, a destination called federalism. That is not what this Bill is about. This is designed to put in place a devolved settlement which was the product of the constitutional convention which the noble Lord, Lord Steel, served with distinction. That was put before the people of Scotland in the White Paper and it was endorsed by them.
It was never our intention to create a federal settlement. I understand that that may be the long-term objective of noble Lords on the Liberal Democrat Benches but that is not what this Bill is about. This Bill is about the establishment of a stable and secure devolved settlement within the Union. On that basis sovereignty rests with this Parliament. There is no escape from that and no attempt to duck it. We make that point explicit in the Bill in Clause 27(7). There is no possibility of having any form of dual sovereignty. That is not a concept that is capable of any rigorous scrutiny.
It is strange that in arguing for this particular type of arrangement the noble Lord, Lord Steel, asks the Committee to take on a very old fashioned and (if I may use the word) conservative definition of federalism. It is a very early United States model based on a layer-cake form of dual federalism. As we know, US federalism has changed from that rigid separation between the federal government and the government of the states. That was found not to be a workable basis upon which a modern government can exist. It has evolved over time. We do not propose federalism; we propose devolution.
To take up another point, the solution is simple. It is before us in what this Parliament--I say this to the noble Baroness, Lady Carnegy--achieved following the Government of Ireland Act. Basically the conventions were established that this Parliament would not become involved in those matters which had been devolved to Stormont. That is the way in which we properly and rightly deal with and solve those issues.
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