(12 years, 10 months ago)
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Lord Wallace of Tankerness
That the House do now resolve itself into a Committee on the Bill.
Amendment to the Motion
Lord Forsyth of Drumlean
As an amendment to the Motion “That the House do now resolve itself into a Committee on the Bill”, to leave out from “House” to end and insert “declines to consider the Bill in Committee until Her Majesty’s Government have laid before Parliament a report on the results of the consultation they launched on 11 January on Scotland’s constitutional future and until the Scottish Parliament has passed a further Legislative Consent Motion in respect of the Bill”.
Lord Forsyth of Drumlean
My Lords, I begin by thanking my noble friends the Leader of the House and the Chief Whip for their courtesy in dealing with the first part of my amendment, in so far as a timetable Motion has been brought forward to ensure that those parts of the Bill which are concerned with matters that are subject to consultation will be dealt with at a later stage. I am grateful to the usual channels on all sides of the House for ensuring that that happened. It is a happy remedy to the problem that was created by the consultation paper setting a date of 9 March for responses.
Consultation papers on referenda seem to be a bit like buses: just when you are not expecting any, two come along. We have a competing consultation paper from Alex Salmond and the Scottish Executive, which was launched yesterday in no less grand a place than the Great Hall of Edinburgh Castle, which in my day was used only for state and non-controversial occasions. It would be a bit like the Prime Minister launching a consultation paper on a matter of controversy in the great hall here at Westminster—something I know he would never contemplate doing.
I am afraid that I have a number of questions for my noble friend and for the Government on the second part of my amendment, which deals with the issue of legislative consent. Perhaps I may dwell for the moment on the consultation paper that has been released by the Scottish Executive. That has a deadline for responses of 9 May, which is after this Session of Parliament is likely to have ended. The Chief Whip on the opposition Benches is shaking his head. Perhaps it may be possible for us to continue discussions on the Scotland Bill beyond 9 May, with his agreement—I think not.
I am very concerned about this competing consultation paper. First, it proposes an absolutely rigged question on independence. It is a loaded question; those who were listening to the “Today” programme will have heard the advice from a completely impartial US expert which confirms that. The question invites the answer “Yes”. That the First Minister is suggesting that loaded question, and that the Electoral Commission, which I am delighted to say he has now agreed should be involved, should be unable to opine on the question, makes me very concerned about the First Minister’s ability to deliver a referendum campaign that would be fair and balanced let alone legal.
What is being proposed in the consultation paper that has been released is not a referendum at all, and what the First Minister is proposing is the most expensive opinion poll in history—it will cost £10 million. It will not be a decisive referendum, because the authority of the Westminster Parliament would be required to achieve that. He is planning on having a very expensive opinion poll; and if he succeeds in getting a result of yes, he would enter negotiations with the Government, and people would then discover what they had been voting for in his referendum. That seems quite the wrong way round. There is an opportunity for us to amend the Bill to ensure that we have a properly conducted and fair referendum that will be decisive, to bring this matter to a conclusion, and to ensure that all the arguments and information are made available to the voters in advance.
As for this consultation paper, I am also concerned about the Government’s attitude—I would like to have a response from the Minister—both to the question and to the fact that the Electoral Commission’s role is to be rigged. The commission will not be able to carry out its duties, as it did most recently in the referendum on AV. Not only was the Electoral Commission responsible for that referendum but the chief executive was the accounting officer. It seems to me that that should also be the position in a matter as serious as deciding whether to break up the United Kingdom.
Not only does the consultation paper propose that there should be a rigged Electoral Commission: the position on campaign expenses is also being rigged. For the Scottish parliamentary elections, each political party was able to spend £1.5 million. The consultation paper proposes that the sum should be reduced to £250,000 per party. I wonder if that is because there is one party in favour of breaking up Britain and at least three against, and this is an attempt to limit their ability to put the argument. So we have a rigged question, a rigged role for the regulator and rigged expenses. On top of that, there is the suggestion that there should be a rigged franchise.
I dwell on this at length to emphasise how important it is that we ensure in this Bill that we have a proper process in place, so that at the end of the day, however people vote in Scotland on breaking up Britain—yes or no—no one can say that it was not fair and the result was not reached in a proper manner.
It really is extraordinary. Certainly when I was Secretary of State I was conscious that I was a Conservative—in many ways I felt that I was in opposition all the time I was in the Government—but I was also conscious that, as Secretary of State, I had a wider duty. On looking at this consultation paper, I am afraid to say that the First Minister has betrayed the trust which has been put in him as First Minister, and he appears to be putting his party’s interest before his country’s interest while posing as a champion of national interest.
One other point that we have to discuss, which relates to legislative consent, is the whole question of so-called devo-max. The consultation paper suggests that there could be a second question on that. Whatever your views on this, and I am not a fan, it would undoubtedly change the nature not just of how business is treated in Scotland but of how business is treated here. In effect it would create an English Parliament and a federal parliament. That is a matter for the United Kingdom as a whole, and if we are to have a referendum on devo-max, whatever it is and however it is defined, it is something for a referendum for the whole of the United Kingdom. Therefore to suggest that a question on devo-max should be added to a referendum on independence is again a deliberate attempt to rig the thing in order to split those who are opposed to breaking up Britain. Once more, I think that that is the purpose.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
Without Moses!
Lord Forsyth of Drumlean
I do not think that Alex Salmond would like being compared with Moses. After all, Moses never got to see the Promised Land. However, on reflection, perhaps my noble and learned friend is right.
One other aspect of the consultation paper is that he wants to rig the franchise and give the vote to 16 and 17 year-olds. My researchers tell me that there are only nine countries in the world that give the franchise to 16 and 17 year-olds, two of which are North Korea and Cuba, both of which have leaders with a high opinion of themselves.
I am not noted for carrying a flag for the Scottish Parliament but, to be serious, there are some very important recommendations here, on some of which I have tabled amendments so that they can at least be debated. I do not agree with all of them, but some of them are perfectly sensible. For example, this Bill provides for the control of speed limits in Scotland to be devolved to the Scottish Parliament. I think that that is daft, because you would cross the border and suddenly there would be a different speed limit. But it has been agreed—it is in the Bill and I do not want to question it. However, the committee of the Scottish Parliament says that it should not give legislative consent unless the Government agree to change the Bill, which at the moment allows the Scottish Parliament to set the speed limits for cars but not for HGV vehicles. It seems a little odd that we are prepared to devolve responsibility for motor cars but not for HGVs. I have tabled an amendment to which I hope my noble and learned friend will give fair consideration at a later stage. There are other issues, too, which should be considered.
I know that my noble and learned friend is agog as to whether I am going to press this matter to a vote. In order to avoid having to do so, I have tabled an amendment on the issue of legislative consent which says that if within two months of Royal Assent for this Bill we have not had legislative consent from the Scottish Parliament to those provisions which relate to its responsibilities, then the Bill will fall, and only those provisions which do not require legislative consent will remain. I hope that my noble and learned friend, after the consultation period has been concluded, and given the evidence of a lack of good faith on the part of the First Minister, will consider amending the Bill to provide for a fair and proper referendum to be conducted. In those circumstances—if the Scottish Parliament did not give legislative consent—we would be left with a Bill that simply provided for a referendum. I beg to move.
Lord Foulkes of Cumnock
My Lords, it is never easy to follow the noble Lord, Lord Forsyth, particularly when you agree with him. Like him, I am very glad that the Government tabled their Business Motion on Tuesday and that we agreed it, because if they had not, I would have supported and voted for the Motion of the noble Lord. It would probably have been the first time that I had done so, but it would have been with enthusiasm and alacrity.
Some of my friends warned me against allying myself with the noble Lord, Lord Forsyth, saying that he is toxic in Scotland. I know that the poll tax which he was associated with was not very popular in Scotland, but I take the simple view that even a Tory is not always wrong. Then, when he or she is right, we should support them; and I think that the noble Lord is right here. I sincerely commend the Prime Minister—I very seldom do that—and the noble Lord, Lord Forsyth, on their clear, unequivocal and dedicated support for the union, because it is not in their narrow party interest. If they were looking after their narrow party interest, they would want to get rid of Scotland, with all the Labour MPs who come to the United Kingdom Parliament.
I say to my colleagues, with great sincerity, that I am sorry that some of them seem afraid of working with the Conservatives and the Liberal Democrats on this campaign to protect the union. Of course we will get jibes from Salmond and the cybernats but that is because they do not want us to work together and to be united. That is why they are saying, “Oh, you are working with the Tories. This is dreadful. This is awful”. I am sure that Members opposite will understand that that carries some resonance, in Scotland in particular. However, I was four years in the Scottish Parliament and I remember that it was Annabel Goldie and the Scottish Conservative MSPs who sustained Alex Salmond. So it is all right for him to work with them when it suits him, but he turns on us when we consider doing so.
Lord Forsyth of Drumlean
Does the noble Lord recall that I shall always be grateful to the Scottish Nationalists for bringing down a Labour Government and enabling Mrs Thatcher to become Prime Minister.
Lord Foulkes of Cumnock
Indeed. That is something else we agree on. Like the noble Lord, Lord Forsyth, we Labour people keep reminding them of that treachery as well. The only good thing about it was that it enabled me to get elected in 1979, but that is another story.
A few years ago I asked one of the most right-wing Thatcherites, George Mathewson, who said that the only person who had done anything good for the Scottish economy was Margaret Thatcher, why he was now supporting the SNP. I could not understand it because he was a real hard-line Tory. He said, “Because I want to keep you Labour people out in Scotland”. That is why he was doing it and, no doubt, that is why Souter, Farmer and others are as well.
I wish to take this opportunity to urge us all, unionists, devolutionists and the Liberal Democrats—who ought to be federalists—not to be fearful of Salmond. The Liberal Democrats need to rediscover the enthusiasm for federalism contained in their manifesto and I was glad to see Simon Hughes at least talking about devolution within England. I have known Salmond for a very long time, since before he was a Member of Parliament. Of course he is cunning, able and a gambler—but he is not infallible. Already we have seen that he is unable to answer some of the searching questions about the reality of independence. When he is asked about the euro or the pound and about defence—when he is challenged on these issues—he is found wanting. We should challenge him at every opportunity. In particular, he wants to muddy the water with the argument between devolution—or devo-max, whatever they call it—and independence by pretending that there is very little difference; that you can move quietly and easily from maximum devolution to independence. Nothing could be further from the truth. There is a huge, vital difference and we must remind people in Scotland of that difference. That is why the first question—and it must be the only question—is whether or not Scotland should remain part of the United Kingdom. The noble Lord, Lord Forsyth, is right—Salmond is proposing a fixed question. The question should be: “Should Scotland remain part of the United Kingdom, yes or no?”. That is the honest, sincere question but Salmond is trying to muddy it. Once we decide—as I hope we will—that Scotland should remain part of the United Kingdom, then of course we can have a detailed debate about how much devolution. We will no doubt discuss that, hold different views and then come to a consensus on it.
Lord Foulkes of Cumnock
It is down for next Thursday as well. Sometimes I think that the Whips on both sides have got it in for us Scots by tabling Scottish business on a Thursday. Not every Member of this House comes from London. Those of us from Scotland who have to travel down and back each week need some consideration in relation to business. It is not just the Whips on the other side but my own noble friends. I have spoken to them—gently—about trying to avoid Thursdays.
We also need to give each aspect of the Bill careful consideration. Some people say we should just rush it through. Salmond accuses us and calls us, as the noble Lord, Lord Forsyth, said, this “unelected House”. He keeps going on about that but this House is part of our constitution. While we exist, we have a responsibility and duty to deal with legislation properly. We should not be ashamed of that. We should not cower.
Lord Hughes of Woodside
Would my noble friend remind the House that the Bill was passed by the elected House of Commons in the first place?
Lord Foulkes of Cumnock
Absolutely—and, like every other Bill, it is important that we give it detailed consideration. Like the noble Lord, Lord Forsyth, I think that we should consider holding off completing consideration of it until that second legislative consent Motion is through. I have the greatest respect for the Minister, as I do for my own Front Bench colleagues—my noble friend Lord Browne of Ladyton gave me a wee look then. I respect their agreement to hold off consideration until later. However, I hope that they will now give careful consideration to holding off final approval and accepting the amendment of the noble Lord, Lord Forsyth, until the second legislative consent Motion is agreed because this is Salmond’s latest trap.
The future of Scotland does not just affect we Scots but everyone in this United Kingdom. Every Member of this House has a responsibility to take part in that. We must fight to protect the union. It is the most successful economic union in the world, which has existed, developed and moved forward for the past 300 years. It is worth all of us fighting for it. Whether we feel inhibited as unelected Members—I that hope we do not—we should fight for what we think is right.
Lord Sanderson of Bowden
My Lords, it is not the first time that, rather surprisingly, I have had to rise to agree with everything that the noble Lord, Lord Foulkes, has said. I, too, have had experience of Mr Salmond as a Minister, when I was in charge of fisheries in the Scottish Office. Of course, Alex Salmond was Member of Parliament for Banff and Buchan, which is—as anyone knows—the main fishing area of Scotland. I can assure noble Lords of what the noble Lord, Lord Foulkes, just said: we are dealing with an extremely clever, devious man, apparently easy going until things are at a difficult stage, and then he will put the boot in.
I will say just one very sincere thing about this particular Bill, which is vital for us and for Scotland. When we consider the referendum, there must be no weakening of the powers contained in the Scotland Act to hold on firmly to the powers that Westminster has over the constitution. This is what my noble friend Lord Forsyth is getting at. I am extremely worried that there are two consultation papers. There is one that we have already seen and one produced in Edinburgh yesterday. The date for final submissions for the Edinburgh document is May. I am very worried that if this goes into the next Session of Parliament—as we hear is likely to happen—Mr Salmond will again get his way. We must not let that happen. We must ensure, through the Scotland Bill and my noble friend on the Front Bench, that when we face the referendum we have adequate safeguards in our Bill to enable us to tell Mr Salmond, “These are the rules by which we are playing”.
Baroness Liddell of Coatdyke
My Lords, I have a great deal of sympathy for the position that the noble Lord, Lord Forsyth, has so eloquently set out. A huge amount has happened in the Scottish debate since these issues were discussed in the House of Commons some months ago. We have to take into account the nature of the change in that debate. If the coalition Government had not agreed to defer the discussion of the referendum sections of the Bill, I would have urged the noble Lord to test the opinion of the House on this Bill, whether or not this is Thursday. We must bear in mind the respect for the Scottish people, and it is to the Government’s credit that they have delayed those sections of the Bill until after the end of the consultation process. The consultation document is excellent.
One reason why I believe that this Parliament is so rubbished by the First Minister and the Scottish National Party is because they have consistently failed to make their mark in this Parliament and in elections to this Parliament. The political parties represented here have a mandate from the Scottish people as well, and we are all clearly parties proud to be part of the United Kingdom. I am a proud Scot, a Scot who is proud of being Scottish and of being British—and I am also pretty proud of being European as well. Many of our antecedents fought on the battlefields of Europe under a British flag, and they did so for freedoms that we enjoy today.
The First Minister wants the referendum to be held in 2014 because of the anniversary of Bannockburn. It is also the centenary of the First World War, when my family paid a price, as did many families, for the freedoms that we enjoy. So we should not be taken up by this “Braveheart” rhetoric of the First Minister.
I am very conscious that it is the will of the Government and of many members of my own Front Bench to proceed with this Bill, and I concede to that. There is a wee bit of an element of tidying up here—I always thought that tidying up in January was an affliction that visited the female of the species and that the male had some sort of genetic in-built gear that stopped the tidying up—as I am told that we must not allow this Bill to go into the next Session of Parliament. I am one of those people who is a wee bit sceptical about a self-regulating Chamber, but people tell me that when you have a self-regulating House you are able to do the will of the House, and I believe that it would be the will of the House to give us extra time to consider the next phase of the legislation.
As I indicated at Second Reading, I wish to probe the Minister about the cost of some of the elements within this Bill, not least of the amendments to taxation. We need to get this discussion and debate on to a grown-up level and learn how the disaggregation of taxation in the United Kingdom will be brought about. If possible, I would love to have a debate on the disaggregation of social security in the United Kingdom, because that is something that the nationalists prepare to move on from very quickly indeed.
Let me be a bit controversial. I do not think that the First Minister wants independence. He is frightened of independence. Why else would he say, “Keep the monarchy, keep the Army and keep sterling”—although going into monetary union without fiscal union is something that we should have learnt one or two lessons about. He is frightened of the consequences; he wants the rhetoric but does not want to take the hard decisions.
I urge noble Lords when we consider this Bill to take the opportunity to probe more deeply into what this concept of additional measures of devolution would mean, because I would not want us this time next year or the following year to come back to these issues, particularly around taxation. I look forward to the debates on these matters, but I thank the noble Lord, Lord Forsyth, for putting this Motion on the Order Paper. To our English colleagues it gives some sort of flavour to the issues that we have to address in Scotland, and I am absolutely confident that every one of us in this House, given the oath that we swear when we take our seats, believes that we are proud to be British, just as many of us are proud to be Scottish, Welsh, Northern Irish and English.
Lord Wigley
My Lords, I rise with some trepidation, as I did at Second Reading, to intervene but briefly in this debate, because Wales is not Scotland and Plaid Cymru is not the SNP. But I could not sit here and hear my good friend Alex Salmond being bad-mouthed in the way that he has been already in this debate, and no doubt we will hear more of that.
Lord Wigley
Well, it is for noble Lords to decide for themselves whether the noises made in this Chamber and heard in Scotland will help or hinder the outcome of a referendum that they wish to hear.
Lord Foulkes of Cumnock
That is exactly what the cybernats say. Is it not to try to shut us up that they are saying that?
Lord Wigley
No, indeed, it is not to shut anybody up but to raise the question that every noble Lord or noble Baroness will answer for himself or herself about the words that they choose in following this very important debate with regard to the future relationships of the countries of the United Kingdom. The noble Lord, Lord Forsyth, rubbished the way in which Alex Salmond had introduced the question, referring to it as a rigged question. He did not, however, read the question out. It is:
“Do you agree that Scotland should be an independent country?”.
I have enough respect for the people of Scotland being able to make a judgment on that, whichever way it goes, because the question is absolutely clear-cut. One can of course have different versions of a question, but that is not a rigged question.
Lord Gordon of Strathblane
On a point of clarification, I would vote yes to Scotland being an independent country. We are independent at the moment. We are in a marriage with England, and I am quite happy to renew our marriage vows at any time, but that does not mean we are not independent.
Lord Wigley
Of course the definition of “independent” is certain to be central to the debate, but all that argument will not be on the ballot paper. The ballot paper has to have a question that reflects the debate that has taken place, and I have no doubt that there will be a debate in detail about the implications of an independent country. The noble Lord, Lord Forsyth, raised the question regarding a referendum possibly not being valid if it is organised from Scotland. However, as we well remember from the debates of the 1970s, the referenda on the then proposed assemblies for Scotland and for Wales were consultative referenda, as any referendum is in the context of our Parliament.
Lord Forsyth of Drumlean
I apologise for interrupting the noble Lord, who is being very generous, but we have just had a referendum on AV which I criticised in this House because, in fairness, it was a binding referendum. It is not true to say that every referendum has been consultative. The difficulty with Alex Salmond’s referendum is that it is simply consultative, but we need to resolve this matter. For example, the Royal Bank of Scotland would not be able to operate in an independent Scotland and if we are going to draw this out till 2016, what is going to happen to the security of our jobs and so on? We need to resolve this one way or the other; that is the criticism. On the point of the question, could the noble Lord, as the spokesman in this place for Alex Salmond, help me? Why is he refusing to agree that that question, which the noble Lord says is fair, should be looked at and determined by the Electoral Commission?
Lord Wigley
I am very grateful for that intervention. I am not going to go after the Royal Bank of Scotland because no doubt we will come to those issues later in the Bill, and I hope to be participating then. With regard to the latter point, Alex Salmond said yesterday:
“The question is designed to comply with the Electoral Commission's guidelines which are that referendum questions should present the options clearly, simply and neutrally. The question we have published today aims to be all three, and will be subject to testing using a sample of voters”.
That accepts that he will have discussions with the Electoral Commission, and I understand that the Secretary of State for Scotland has welcomed that.
Lord Forsyth of Drumlean
I do not know what the Secretary of State for Scotland has said, but what the First Minister said is what the noble Lord just read out, and it is typical of the weasel words that are used. When he is asked specifically, “Will the question be changed if the Electoral Commission advises that it should be?”, we get no response. Does the noble Lord agree that if the Electoral Commission, as the regulator, suggested a change then any fair minded First Minister would agree to it and agree to that principle?
Lord Wigley
Clearly, anyone concerned with the question will take great note of what the Electoral Commission says. I make it clear to the noble Lord that I am not here answering on behalf of Alex Salmond, but I wanted to stand up and say a word on his behalf when I heard certain words being used—we heard the phrase “weasel words” a moment ago—and his good faith being questioned. He has been described as cunning, a gambler, devious and frightened. I put it to noble Lords that if the debate is going to be pursued in that tone, what will be the outcome and the reaction in Scotland? I leave it at that.
Lord Kerr of Kinlochard
My Lords, I am ashamed, as a Scotsman and a Scots unionist, that it took a Welshman to make that point. I agree about the language.
I felt uneasy on 10 January when the noble and learned Lord, Lord Wallace of Tankerness, presented the Government’s consultation paper to us. There was enormous cross-Chamber unanimity that it was a jolly good document, that it was right in law and that it was right on the question and its timing. All the blue bonnets from over the border, the Forsyths, the Foulkeses, the Steels, the Langs—the Scottish political aristocracy of yesteryear—were all strongly in support of what the United Kingdom Government said in their consultation paper. A different view was taken by quite a large proportion of the Scottish people, for whom this all may have seemed a little odd. I do not disagree with the noble Lord on what he said about the law; the paper is mainly about the law and reserved powers and the power in Section 30. However, it is not clear beyond peradventure in Scotland that the terms and the timing of the question need to be settled by us, not by the Scottish Parliament. I am not saying that the people who disagree with that are right but merely that it is a question for debate.
In the debate that I have referred to, the noble Lord, Lord Forsyth, put a number of interesting questions to the Scottish National Party and he has done so again today. He has made an interesting, lively, jocular debating speech, asking questions of the SNP. I feel sorry for the Minister who has to answer the debate; it is not really his job to answer for the SNP. Here is my serious point: why is there not someone in this Chamber who does answer for the Scottish National Party? I know the answer, but it would be highly desirable that all parties that are represented in this Chamber should make informal representations to the missing party. I do not support the amendment of the noble Lord, Lord Forsyth; we should go ahead with the Bill and the Government’s timetabling proposals seem absolutely right to me, but our debates on the Bill would be greatly assisted if we had half a dozen people here who actually believed in the policies of the SNP, perhaps because they were members of it.
Lord Foulkes of Cumnock
I completely agree with the noble Lord, Lord Kerr. He may know the answer to his question but maybe not everyone does. My good friend and SNP MP Pete Wishart has raised regularly at SNP conferences that they should take up the offer to nominate for this place. That has been vetoed again and again by Alex Salmond.
Lord Kerr of Kinlochard
It is a question that could be raised again, given that we have a legislative workload on Scotland and that we would benefit from hearing the views of the Scottish National Party.
I have an additional point, and here I agree very strongly with what the noble Lord, Lord Wigley, said. I do not want to see the balkanisation of Britain. The first casualty, though, could be the language of constitutional debate. We really should not be using language like “rigged” or “fixed”. If there was someone here to answer and hit back at us in this debate, it would be bold and brave to use such language; it is not bold and brave to use it when there is nobody here to speak for the side that one is attacking. To accuse someone who is not represented here of being devious seems very unwise. We have very serious constitutional questions to address. I am a unionist. It is very important for the future and the health of the union that we address these questions in sober, polite and reasonable parliamentary language.
Lord Forsyth of Drumlean
Could I ask the noble Lord about the interesting argument that he is developing about the importance of having people from the Scottish nationalists in this House? Would he apply that to UKIP? When he talks about language, I recall that the noble Lord referred to Members on this side, who are rather more sceptical about Europe than he is, as the Tea Party. Was that an appropriate use of language?
Lord Kerr of Kinlochard
I am delighted that the noble Lord remembers—I thought it was one of my most polished impromptus and that it had fallen by the wayside. I have no views on and nothing to say about UKIP. We are talking about Scotland and the party that won a landslide election victory last year and should be represented in this House.
The Lord Bishop of Chester
My Lords, I hope I can be forgiven, as a Sassenach bishop, for making a brief contribution. When I go to Burns suppers at this time of year, I find myself with rather better Scottish credentials than many of those who present themselves in kilts: I have two degrees from a Scottish university and one wife from Scotland, as well as a home there. I am probably the only bishop who will have a vote in the referendum, if I understand the franchise correctly. I am tempted to take a poll of all my Scottish friends who will be disenfranchised before I decide how to cast my vote.
I have a specific question for the Minister, which has not been raised so far. The Second Reading debate was in September and we are now entering Committee at the end of January. An awful lot has happened in that time. In the mists of history, I was a chemist and one of the few things that I learnt was that, when you have several variables on the go at the same time, it is difficult to know what is really happening. In doing an experiment, you change one variable to see what the result is before you bring another variable into play. The referendum might be held in the midst of the implementation of the significant additional devolution that is enshrined in the Scotland Bill, not least in the area of taxation, which throws down the gauntlet as regards fiscal matters. Have the Government given any thought to the awkwardness of holding the referendum and that discussion while we are further down the line of implementing this Bill? That rather undergirds what the noble Lord, Lord Forsyth, said and the last part of his Motion. If we are to go ahead with this Bill, we have to do so with the full consent of the Scottish Parliament. If we do not, it will be a very awkward and messy discussion. It is already marred by a great deal of awkwardness and messiness for various reasons.
Lord McConnell of Glenscorrodale
My Lords, the result of last year’s election in Scotland produced two significant developments which should affect today’s discussion. I congratulate the noble Lord, Lord Forsyth, on bringing this matter to the Chamber. There is a need to discuss the Government’s overall strategy in relation to this Bill and the other matters that affect its progress.
The first significant impact of last year’s election result in Scotland is that there will come a point when, for the first time since devolution and the innovation of the legislative consent Motion, which my noble friend Lord Sewel introduced, there will be a significant issue—subject to a legislative consent Motion—on which the two Parliaments disagree. The second significant development and impact was that the majority achieved by the Scottish National Party in those elections gave the First Minister the opportunity to use that majority ruthlessly—he has been very clear about this—to determine, if he could, the rules, organisation and timing of the referendum.
Perhaps to the surprise of many of my colleagues, I welcomed the Prime Minister’s intervention this month, but I have two regrets about it as well. The first is that it was several months too late and should have occurred at a much earlier stage in the debate. None the less, it is welcome. The second is that it appears yet again to be part of a government strategy which, to be honest, has regularly since last May seemed to be all over the place, with different Ministers saying different things, the Prime Minister sometimes intervening and sometimes not, and the Government changing their position on different aspects of a referendum or other matters from time to time, or at least giving the impression of doing so.
This debate gives us an opportunity to say to the Government and to the Prime Minister that there needs to be a much more coherent approach to this. It is vital that the referendum, whenever it takes place, does so under fair rules agreed between the parties, not just by the nationalist majority in the Scottish Parliament but by all the parties, as occurred in 1997. The new Labour Government in 1997 gained more votes than did the Scottish National Party in Scotland last May, yet that summer they worked not just with the Liberal Democrats, who were our colleagues in the Constitutional Convention—the noble and learned Lord, Lord Wallace, was a leading figure in that discussion—but with the nationalists, who were against devolution up until that referendum, and with the Conservatives, who at that point were in opposition in the House of Commons. That is the approach that must determine the organisation of this referendum. Any interventions that help us secure that are, in my view, welcome. If the Government are to succeed in this effort, they need to be more coherent and more consistent in their approach to tackling these issues.
As regards the legislative consent Motion, we have to understand that if we have a process that works relatively comfortably when the two Governments are working in agreement and when the two Governments are of, or largely of, the same party, there will be times when the legislative consent Motion is not going to happen because the Scottish Parliament is of a different political composition. You cannot have the principle of the legislative consent Motion and then ride roughshod over it. I know that that is not the intention of the noble and learned Lord, Lord Wallace, and it would certainly not be his approach, but we have to be very cautious about making too much progress on this Bill in advance of further discussion taking place with the Scottish Parliament, as the noble Lord, Lord Forsyth, has said. There is a point of principle on the LCM. We need to be careful how we proceed. I understand the desire of many Members on both Front Benches and elsewhere to make progress on the Bill, but we need to make sure that any such progress and any further interventions on the issue of a referendum should proceed in a coherent fashion and that the Government should follow through with a proper strategy to engage the Scottish Government in discussions—not just do interviews on Sunday mornings on the BBC—even if they have to force them to the table to do that, to make sure that the Scots get the referendum they deserve.
Lord Hughes of Woodside
My Lords, I wish to follow my noble friend on the point about how we are going to have discussions with the Scottish Government or the Scottish Executive. The trouble is that there are no circumstances whatever in which Alex Salmond and the SNP will sit down to discuss anything about the future. My noble friend will recall that Alex Salmond is not alone in that—the Conservative Party did not take part in the Scottish Constitutional Convention, which eventually produced the devolution settlement. The Scottish Government refused to have anything to do with the Calman commission, which is the basis of this report. At no time has Alex Salmond been prepared to discuss this rationally with anyone. That is not meant to be an insult; it is a statement of fact. I do not want to go over old scores. I just say to the noble Lord that some of us recollect hearing the wrath of members of the SNP on their doorstep when elections were being fought. That was not a pretty sight. I will say no more than that. However, I do not want to be misunderstood. I will see him outside and tell him later.
I fear that whatever we do today will be misconstrued. Alex Salmond is full of slogans. I remember the slogan in the 1993 election: “Scotland free by ’93!”. Now it is: “Scotland free but not yet”. I do not think that we can achieve agreement. Alex Salmond has said that he wants not only to have the referendum but to set the date for it. I think he will achieve that date, but not by agreement. What happens if we in this Parliament decide—either in the Commons or here, or together—that we want a different date and a different question, and Alex Salmond says, “I am going to have mine anyway.”? How is he to be stopped—perhaps through the Supreme Court? That will easily take up the time until 2014—no problem at all. The dilemma is, I fear, that we really do not know how we are going to deal with this. How can we deal sensibly, reasonably and amicably with a party that is totally determined not to have any discourse whatever?
Although I agree with much of what the noble Lord, Lord Forsyth, has said—in fact, I argued and made representations myself that we should not go ahead, and I even suggested giving the Government a guarantee that we would get the Bill on a date that would be necessary in order not to lose it—we have to go ahead and debate it on the basis of our good faith.
I sometimes think that the only way to make sure that Scotland does not become independent is to trumpet the fact that something like 54 per cent of people in England want Scotland to be independent. What will Alex Salmond do? He will say, “I am not going to be bullied by the English into going independent”. That is his whole attitude—bully, twist and turn. We will do our best, and perhaps the time is coming when we should simply get on with the Bill.
Lord McConnell of Glenscorrodale
My Lords, before the noble Lord takes his seat, will he comment on what appears to be a strategy by the First Minister—the strategy that can be used by those who wish to move out of a block of flats, if I may use that analogy? The best way to get the move, as a tenant, is to annoy the neighbours. Perhaps a strategy is being followed here. Will the noble Lord join me in asking the people of England not to rise to that strategy?
Lord Hughes of Woodside
I absolutely agree and, although I do not know whether it is intentional, I think that Alex Salmond has deliberately set out to attack the English and blame them for everything. I guess that I will probably not be around if there is ever Scottish independence to see how the nationalists react when they are on their own and there is no one to blame. Yes, he wants to annoy people and we should not fall for that. When the referendum comes, I hope that people in England, Ireland and Wales get a say in some form or another. The case will be made very strongly that those of us who believe in the union and in Scotland certainly do not believe in antagonising the neighbours.
Lord Sewel
My Lords, for a number of reasons, I am not particularly keen for the 1998 Act to be amended, but I will accept it as we progress. However, the important thing is that nothing in the 1998 Act prevents this Parliament legislating in devolved areas. That is stated in the Act itself, but of course to get a proper relationship between the two Parliaments, we formulated what has come to be called the Sewel convention, whereby this Parliament will not normally legislate in a devolved area except with the agreement of the Scottish Parliament—I repeat, not normally. That is the relationship.
The need for a legislative consent Motion, which is founded upon the Sewel convention, was then extended to cover any legislation that affected the powers of Scottish Ministers. I think that that was done without any statement to Parliament. I have never been able to trace, apart from in a Cabinet Office note, how that extension occurred. In some way, that is why we are discussing the need for a legislative consent Motion for the non-referendum part of this Bill. I am attracted to the idea that we split the Bill and deal separately with issues relating to new powers for the Scottish Parliament—which I accept to all intents and purposes come under the requirement for a legislative consent Motion—and the bit about the referendum, because it does not require a legislative consent Motion as a referendum relates to the constitution. The constitution is a matter that is specifically reserved in the 1998 Act to this Parliament. Furthermore, if you read the debates on amendments that Members of the Opposition tabled at that time on the need for a specific reference to an independence referendum, the Secretary of State in the other place and I here made it absolutely clear that by reserving the constitution and everything to do with it, anything anticipatory and ancillary to a referendum is reserved as well.
Lord Sanderson of Bowden
Does the noble Lord agree that the time for an enabling Bill, because I think he is going down that route, is in the next Session of Parliament once Scotland has agreed to the consultation document—not our own one but the other one? Surely that is the time for this Parliament to consider and if necessary put through a Bill.
Lord Sewel
The noble Lord, as always, makes an interesting and important point. At this stage, I am not prepared to follow him completely, but it is something upon which we may wish to reflect as the debate progresses in our House.
Part of the confusion that we face on the whole business of a referendum, because the debate in Scotland for a long time assumed that it was within the powers of the Scottish Parliament to call a referendum on independence, is because—and we have seen this sort of tactic in a number of areas—the present First Minister has a very good knack of being able to make quite outlandish assertions, and make them so strongly and repeat them so many times that people come to accept their validity without any attempt to find out what the actual position is in reality and in law.
I hope that we progress with this Bill, but we must do so with a great deal of care.
Lord Steel of Aikwood
My Lords, although I agree with many of the arguments advanced by my noble friend Lord Forsyth, I am glad that he is not going to press his amendment to a vote.
The noble Lord, Lord Kerr, suggested that my noble friend Lord Sanderson was being a bit unkind in using the word “devious” about Mr Salmond, and I take his point. Can I rephrase that and be positive and say that Mr Salmond is successfully manipulative? That is a compliment. I have said repeatedly that members of Her Majesty's Government underestimate him at their peril. He is not known as “smart Alec” for nothing north of the border. I remind the House that in the previous two general elections in Scotland he did not campaign on independence. He did not even campaign under the banner of the Scottish National Party. He campaigned on the basis of, “Alex Salmond for First Minister”. That tells you a great deal about how we have got to where we are. That campaign was very successful and manipulative.
There is another area that we have rather passed over. Before any Bill is introduced, the Presiding Officer of the Scottish Parliament has to sign legislative competence, both under the Scotland Act and the European Convention on Human Rights. I used to take that matter very seriously indeed, and the noble Lord, Lord McConnell, will not mind me saying that there were occasions when I told the Executive that they could not expect me to act just as a rubber stamp. My legal advisers would send me back with a red box with perhaps 30 pages of their opinion on whether something was legislatively competent or not.
The referendum Bill, as outlined in Mr Salmond’s consultation paper yesterday, would have to come to the Scottish Parliament. Frankly, if I were Presiding Officer I would not sign a document that said that a referendum was within the competence of the Parliament because I do not believe that it is. The noble Lord, Lord Forsyth, may be correct that the Scottish Parliament can hold an expensive opinion poll, but it certainly cannot hold a referendum, for the reasons that the noble Lord, Lord Sewel, just advanced. However, remember what happened after the most recent election. After the first Scottish election, I was elected as the Presiding Officer, and I came from the Liberal Democrats. In the second Parliament, the Presiding Officer, George Reid, came from the Scottish National Party. In the third Parliament, the Presiding Officer, Alex Fergusson, came from the Conservative Party.
On any understanding of common sense and good will, it was the Labour Party's turn to provide the Presiding Officer after the most recent election, but of course Mr Salmond does not do graciousness. He does not do consensus. He had a majority, so a member of the SNP was appointed as Presiding Officer. I make no criticism of her whatever; I think she has behaved perfectly well, but it puts her in an impossible position and has shown again how Mr Salmond's record is one of being successfully manipulative—as did the use of Edinburgh Castle yesterday, to which the noble Lord, Lord Forsyth, referred and as does the question in the consultation paper. We were told over the past few days by every newspaper that Mr Salmond was being so kind that he was going to allow the Electoral Commission to be in charge of the referendum, but when we read the paper we find that it is in charge of the administration but not in charge of the question. That, again, has been successfully manipulated.
I just say to the House that we must be extremely careful in all our dealings with the present Scottish Government. The paper published yesterday is run through with the theme of successful manipulation. I think we should proceed with the Bill. I take the view—as, I think, does my party—that it is not strong enough. We want greater devolution to the Scottish Parliament in future, but that is not on the agenda now. This is a Bill produced by consensus, and for that reason we should press ahead with it.
Lord Empey
My Lords, I have great sympathy with the proposal of the noble Lord, Lord Forsyth, because it appears that we are putting the cart before the horse. Nevertheless, I have to say that I do not think that the full implications of what is proposed have sunk in for people. I have a very simple question. If the people of Scotland were to leave the United Kingdom, how can we have a United Kingdom if one of the kingdoms has left? What will we be called? What is Great Britain without Scotland? What will that be called?
A lot of comment has been made about the First Minister personally. I think we should get away from that and forget about the individual. We are talking about the future of more than 60 million of us. We are literally all in this together in every sense. Think of the situation that my colleague, the noble Lord, Lord Browne, and I would be in. We would have a foreign country on one side of us and a foreign country on the other side of us. We would end up like West Pakistan. We are all hewn from the same rock. Imagine the circumstances we would be placed in. We have just spent decades overcoming nationalist terrorism and we have gradually, after years and years, managed to settle down our community. I do not wish to exaggerate, but if the Scottish nationalists were to succeed it could reignite the difficulties that we have just managed to overcome. I do not say that lightly.
Having spent many years negotiating with Irish nationalists of different stripes, I have to say that we have got to get the tone of the debate right. We should not hector nor bully the Scottish people. We must not, we cannot; if we do, we do so at our peril. We will not win the argument by saying, “You’re going to be impoverished here”. Any group of people who are determined enough can be independent. They may not have the same standard of living, but they can be independent and survive.
Lord Singh of Wimbledon
My Lords, I follow on the theme of the importance of the tone of the debate. We all know the story of the north wind and the sun, who had an argument about which could make a man take his coat off. The north wind tried first and blew and blew and the man pulled his coat tighter and tighter around him. Then it was the sun's turn, and as the sun came out the man felt happy and warm and took his coat off.
I do not think that aggressive language helps the tone of the debate. We have heard words such as “devious”. Even in the phrase “successfully manipulative”, qualifying the word “manipulative” does not help. If and when a referendum takes place, it is certain that the appeal of the nationalists will be to the history of the union in the first place and the history of fighting and coercion. The argument against that is to look to the interests of a new union based on respect and mutual understanding. If the debate is conducted in that way, I think we have a much better chance of preserving the union.
Lord Maclennan of Rogart
My Lords, I am grateful to my noble friend Lord Forsyth for moving his amendment to the Motion. It is an extremely valuable debate in which most of the relevant points have been made.
I remain concerned, and would like to hear my noble and learned friend’s views about the Scottish Parliament's failure to pass the legislative consent Motion in respect of the Bill. The difficulty is that such a Motion has not even been tabled—the point made by my noble friend—and its absence is crucial. Legislative consent needs to be affirmative; it cannot be presumed by its absence. In the absence of that Motion, Holyrood cannot even vote to reject the Bill, and its progress to the statute book here is as stymied as if there were a clear Motion opposing the Bill.
I understand that at least some members of the Scottish National Party, and of the committee in the Scottish Parliament that looked at the Scotland Bill, are interested in having discussions about its content. The leader of the Scottish National Party may be using his personal veto to prevent the Motion being tabled, but I noticed that Linda Fabiani, the committee’s chairman, asked the coalition Secretary of State to propose changes to the Bill. There has been no response that I am aware of to that request. I think that it would be appropriate to give a public response knowing what authority the Scottish Parliament has over the outcome of our deliberations. I wonder why we have not had some kind of indication.
The Bill is certainly based on broad cross-party consensus. It is possible, in the light of the changed circumstances, that that consensus may have moved on. Some may be more favourably disposed to even more fiscal devolution than was the Calman commission. I think that we ought to have that debate before we get tangled up in detail. We ought to have some idea of where the consensus now lies. I hope that my noble friend will be able to help us on that. It is an important Bill and a vital step along the path towards a fiscally decentralised United Kingdom.
However, there is another consideration that it is right to ventilate at the beginning of this process in the light of what has been said about the referendum. I believe that the bulk of the Scottish people are now not wholly satisfied with the devolution as it was enacted in 1998. There is quite a lot of evidence that there is a willingness—indeed a wish—to see more done. It does seem that, although this is a step in that direction, we could give the Scottish people a greater clarity and sense of the alternative to separation by having that discussion in the context of this Bill. That should certainly precede our deliberation of individual proposals and clauses. This is far too big an issue to have just a tinkering approach to the Bill, which seeks to implement Calman and in some ways goes beyond Calman. Can we hear from the Minister the Government’s thinking on those two points?
The Earl of Mar and Kellie
My Lords, when we considered the then Scotland Bill 12 or 13 years ago, the late Lord Mackay of Ardbrecknish complained that the failure of the Scottish National Party to seek to appoint any Peers caused the Scottish debate to be similar to trying to debate with Banquo’s ghost. I think that the late Lord would agree that that was still a problem here.
Following on from what my noble friend said, this Bill is the result of a very considerable coalition, in the Calman commission, which brought about the Calman report. These parties ought to get on with delivering the Bill, which is fairly tame by comparison with what is actually wanted in Scotland.
Finally, in a single sentence, I hope that this House will try to avoid making the same mistakes it made in 1893 when considering Irish home rule.
Lord Browne of Ladyton
My Lords, we have had a wide-ranging and diverse debate on this comparatively simple Motion, and we have the noble Lord, Lord Forsyth, to thank for that opportunity. I have not been long in your Lordships’ House, but when discussing Scotland I have become used to hearing the same familiar voices—speaking on some of the same issues, I have to say.
This debate in its diversity has added something and I am particularly pleased to have heard from the noble Lords, Lord Empey and Lord Singh, and, although it is a Scots voice, from the noble Lord, Lord Kerr. The points that they made individually and collectively should be listened to by my Scots colleagues. I was pleased that on Second Reading my noble friend Lord McConnell made a forward-looking speech. Scotland is in its politics, as I perceive it, beyond arguments that may well have served those of us who wanted to see the union held together. It is now looking for reasons to stay in the union rather than reasons why it cannot leave the union. The tone and content of how we conduct ourselves in these debates is crucial in the modern world. In my contribution to these debates, I intend to try at all times to describe a Scotland that is better for the people of Scotland and the people of the United Kingdom. Some strong strands or threads of debate are emerging already which suggest that there is an appetite in your Lordships’ House for this kind of debate and I am very pleased about that.
My second point is about a slight discord with my noble friend Lord Foulkes who is a very good personal friend as well as being a noble friend and a party colleague. My recollection of the general election on that terrible night in 1979 was not that his election was the highlight in Scotland, but that it was the election of my noble friend Lord Maxton to the constituency of Cathcart. It was a bright light in an otherwise very dull night for me. I hate to introduce that level of discord and I hope that my noble friend will forgive me, but that is certainly my recollection.
Lord Foulkes of Cumnock
It is a debatable point whether the achievement of getting rid of Teddy Taylor was better than getting rid of Jim Sillars. Perhaps we could discuss it outside.
Lord Browne of Ladyton
The margin of winning may have been very narrow but I certainly know where I stand. I am happy to debate with my noble friend outside but let us just say that there were very few bright lights that night and maybe we should savour them all.
My third point is that I am grateful to the Government, the usual channels or whatever the processes are, which I have never quite got to grips with in this place, for the level of cross-party engagement to manage the order of consideration of the Bill. Having been party to that agreement I shall resist the temptation to discuss referendums and questions relating to referendums in this contribution.
However, I will break that general rule in order to make one point. It struck me as very interesting—indeed, instructive—how quickly the noble Lord, Lord Wigley, who came to the aid of Alex Salmond, went from trying to persuade us that the proposed question was straightforward, via one very simple but telling intervention by my noble friend Lord Gordon, to a position of having to try to define one word of it in order to explain why it was straightforward. If I had had the opportunity to cross-examine him further, I suspect that we may well have got a long dissertation from him on that comparatively simple and straightforward question that would have left us all utterly confused about whether a yes or no answer would have made us any the wiser about the view of the people of Scotland. However, these are discussions for another day. Having agreed this with the Minister, as well as with other Members of the House and with the coalition Government, I shall resist the temptation to say more.
Lord Forsyth of Drumlean
The noble Lord is making a very interesting and important speech, and I do not want to ruin his thread, but I am not clear about what he is saying about legislative consent. Is he saying that because this process has been gone through, if the Scottish Parliament did not give legislative consent, we should go ahead anyway? Or is he saying that the Scottish Parliament ought to make up its mind and decide? Will he help me with that?
Lord Browne of Ladyton
I am grateful to the noble Lord for his question and I shall endeavour, if I may, to deal with those issues in the thread of my argument, because I will deal with them. I apologise if I am engaging your Lordships' House for a period of time on this, but it is important. I want to make this argument in its entirety so, if I may, I shall make it in the order in which I have thought about it.
Not only did the Calman review report, and not only did successive UK Governments welcome that report and start the process of implementing the recommendations—I say at this point that when it comes to the detail of the debate, I will be probing whether we have been true to Calman in some regards, because that is quite important—but we put this issue to the Scottish Parliament. I say “we put this issue”; the issue was put to the Scottish Parliament. We have a Bill that is largely faithful to Calman. Calman is, in my view, well argued and well explained. I know that all noble Lords do not agree with that, but we will have a debate about it. That Bill has been through a process in the Scottish Parliament, and this is important. On 10 March 2011, the Scottish Parliament, on a cross-party basis, which this time included the Scottish nationalists, voted in favour of a legislative consent Motion supporting this Bill—not precisely this Bill, but largely this Bill. It made certain recommendations and asked that the Government and the UK Parliament take those recommendations into account. In other words, it voted in favour of that with conditions, and Alex Salmond himself voted in favour of that Motion on the basis of those conditions, so we have a legislative consent Motion from the Scottish Parliament which Alex Salmond voted in favour of. Those conditions have largely been met. In fact, the amendments to the Bill, and the reason that the Bill arguably has to go back for a further legislative consent Motion, are substantially because of the conditions that the Scottish Parliament asked to be considered that are now reflected in amendments to the Bill. In 2011, Alex Salmond said that he was in favour of this Bill, if the Government did certain things with it. Substantially, those things have been done, as we will no doubt uncover when we debate this in Committee and on Report, and now there appears to be some question mark about whether the Parliament, which his party controls, is prepared to give that amended Bill consent. I do not know whether this is unparliamentary language in your Lordships' House, but it seems hypocritical in the extreme for him, having voted for it, to reject the Bill at this stage.
Lord Wallace of Tankerness
My Lords, I start by thanking my noble friend Lord Forsyth for moving this amendment. He questions whether I should—I think it has been very useful. I hope we will move into Committee, but it is helpful that that has been placed in the context of the current political debate. It is a very serious constitutional debate, not just for Scotland but for the wider United Kingdom, as other noble Lords, not least the noble Lord, Lord Empey, have indicated. The comments that have been made have helped to set that context.
I endorse what was said by the noble Lords, Lord Kerr, Lord Singh of Wimbledon and Lord Browne, about the importance of the tone of these debates. It is important that we conduct these debates in a very rational manner, putting and testing argument in a way that I think is typical of this House. The noble Lord, Lord Kerr, indicated that it was perhaps unfortunate that there are no Scottish National Party Peers here. I do not propose to answer for the Scottish National Party but I share his view. That is a decision that the party has taken. Our debates are possibly the poorer for it. Without embarrassing anyone by naming names, many of us can think of one or two Scottish National Party Members who would certainly add to the deliberations in your Lordships’ House. Of course, they might then be able to move some of the amendments on the recommendations of the Scottish Parliament committee. I know that my noble friend Lord Forsyth will move some of them. No doubt the business managers will have noted his comments about the Moses Room.
We certainly took on board the comments that had been made about the fact that it would not necessarily be desirable for Committee stage of this Bill to take place when there would still be live questions on amendments tabled in relation to the referendum on independence while the Government’s consultation was still outstanding. That consultation will close on 9 March. I am grateful to all who contributed through the usual channels that the House was able to agree a Motion on Tuesday, which has been widely welcomed, to enable our debates on Clause 10 to be taken last. At that time, I suggested to the House that any amendments relating to the referendum or independence should be best placed before Clause 10. Perhaps I may express my gratitude to noble Lords who have tabled, and in some cases retabled, referendum-related amendments before Clause 10 rather than to other parts of the Bill in order that we can fulfil the intention of the order of consideration that was put before the House. To repeat what I said on Tuesday, the Chief Whip will ensure that the last day in Committee is scheduled for the week of 12 March, which will allow us to debate the referendum in the light of the responses received during the consultation period.
That said, we immediately found ourselves debating issues relating to the referendum and the consultation documents. While I am tempted to follow the noble Lord, Lord Browne, down the road of saying, “Well, perhaps it is not appropriate to discuss these”, I think that it would be only courtesy at least to address some of the issues that have been raised. However, quite clearly, when the House resolves itself into Committee and we reach the amendments that have been tabled in relation to a referendum, we will have an opportunity to discuss those issues at greater length and in more detail.
I am very grateful for the comments made by the noble Lord, Lord Browne, about the lecture I delivered at Glasgow University last week. I was able to confirm the very strong view of the United Kingdom Government that under the Scotland Act 1998 the Scottish Parliament does not have the legal competence to pass a referendum Bill. Things obviously flowed from that and we set out in our consultation why we believe that a referendum should be legal, fair and decisive, and the ways in which we might seek to do that.
It is fair to say that we have moved a long way in two weeks. First, I do not think that I had sat down in your Lordships’ House after having repeated the Statement before we had been given a preferred date by the Scottish Government for a referendum, for which many people had been asking for some considerable time. It appears to be the case that we have agreed that the preferred way to deliver the legislation for a referendum is by the two Governments working together. In their consultation paper yesterday, just as the United Kingdom Government expressed their preference for an order under Section 30 of the Scotland Act to take this matter forward, the Scottish Government indicated that their preference was for a Section 30 order.
Without going into the detail of the Section 30 order, I know that my noble friend Lord Sanderson expressed the importance of the role of the Westminster Parliament in constitutional issues. Of course, a Section 30 order not only has to be approved by the Scottish Parliament but has to be approved by both Houses of this Parliament, which means that, assuming we can make progress, any order which we would wish to bring before the House is one which this House would have an opportunity to consider. Clearly, that will be in mind as these discussions take place.
Lord Forsyth of Drumlean
Perhaps my noble and learned friend can help me on one point. He has been very generous in agreeing to reschedule the consideration of the Bill in order to accommodate the timetable of the Government’s consultation paper. Will he say something about how he proposes to deal with the problem created yesterday by the Scottish Executive’s consultation paper, which has a timetable that takes us beyond the period probably of this Session and therefore our ability to consider the Bill? How do we resolve that?
Lord Wallace of Tankerness
I was going to deal with that matter later. The noble Baroness, Lady Liddell, also made reference to the possibility of carrying over the Bill. Certainly, it is my understanding that the normal process for carrying over legislation is that it has not passed to the second House for consideration. Page 642 of the 24th edition of Erskine May states that,
“carry-over is restricted to Bills which have not yet left the House in which they originated”.
Therefore, to try to carry over this Bill would mean not so much carrying over but effectively starting the process again, which would significantly delay implementation. That is why I believe it is right to continue with the current timetable and I will come on later to explain why. It is important that we make progress on that.
My noble friend Lord Forsyth mentioned the fact that, as we are well aware, the consultation paper was published yesterday. The point is that the UK Government’s consultation paper indicates that while our preference is for a Section 30 order, there is also the possibility of using this Scotland Bill. Clearly, if we are to get this Bill passed in the current Session, it would not be possible to put it off indefinitely. I note that paragraph 1.7 of the Scottish Government’s consultation paper states:
“The UK paper sets out two possible mechanisms to transfer the power to hold a referendum on independence: an Order in Council under Section 30 of the Scotland Act 1998, or an amendment to the Scotland Bill currently under consideration by the House of Lords”.
It does so without any implied criticism. It just states that as a fact. We would wish therefore to make progress, although it is important for us to indicate that, but for the fact that my right honourable friend the Secretary of State for Scotland has been stricken down with chicken pox, there would have been a meeting tomorrow between him and the First Minister on these matters. Unfortunately, it cannot take place tomorrow but we are very keen that it should take place—I do not think the First Minister is keen that it should take place while the Secretary of State has got chicken pox—as soon as possible. It is a welcome sign that that engagement is happening.
I will reflect on the points made by my noble friend and others about the role of the Electoral Commission. However, the UK Government have made it very clear that we believe that the Electoral Commission is a proper body to have oversight of the referendum, not least given its track record in monitoring referendums since its inception. We are clear that that is our preference.
A number of noble Lords raised whether the question proposed by the Scottish Government is fair. We will certainly wish to consider the consultation document carefully but we believe, as set out in our consultation paper, that the Electoral Commission should have a statutory role to review and to comment on the question. As others have pointed out in the press today, it is not immediately clear from the Scottish Government’s document that they propose that the Electoral Commission will have that role. I understand that the First Minister has indicated that this may have been an oversight of the document but we will obviously pay close attention to that. Clearly, it would be part of the substance of discussions.
Lord McConnell of Glenscorrodale
The Minister advised that at some stage, perhaps not today but in the future, that process could involve looking at a variety of ways of posing the choice. Over the past few decades, it has not necessarily been the case in the United Kingdom that all referenda have included questions that had a yes or no answer. There have been referenda which posed a choice. I should like the Electoral Commission to be able to look at a variety of possibilities and not just those that have been chosen in more recent times.
Lord Wallace of Tankerness
I recall the kind of situation that the noble Lord, Lord McConnell, suggests. That emphasises that the Electoral Commission does have an important role to play. I cannot answer his specific question today, but it underlines more generally the important role of the commission. Further, as I have indicated, this will be a matter for discussions with the Scottish Government.
I have made the point that these discussions are taking place, but my noble friend also raised the question of what we should do with the Bill pending a legislative consent Motion in the Scottish Parliament. As the noble Lord, Lord Browne of Ladyton, reminded us, the Scottish Parliament expressed its general support for the Bill, subject to some detailed concerns, in a vote in March 2011. Of course, the Scottish political landscape has changed since then, but as he rightly reminded us, those voting for the resolution included many Members of the current majority party in the Scottish Parliament, including the First Minister himself. He also indicated that there has been a response from the UK Government to the points made in the legislative consent Motion, specifically that provision has now been made in the Bill to allow bonds to be introduced in the future without the need for further legislation. There is a provision in the Bill to allow for reciprocal consultation between Governments in relation to electoral matters; provision to provide Scottish Ministers a role in the appointments to MG Alba; and provision to give Scottish Ministers responsibility for the disqualification rules for the Scottish Parliament. Obviously we will come to discuss Clause 17 at the next sitting of the Committee, if we get that far, which in a number of important respects is a response to the review undertaken by the noble and learned Lord, Lord McCluskey, at the request of the Scottish Government. So there have in fact been numerous comprehensive responses to the previous LCM.
I can assure the House that we are considering carefully the latest Scotland Bill Committee report. Its timing is clearly not a matter for the UK Government, but I can confirm that we are in continuing constructive discussions on the Bill with the Scottish Government. It might be premature to table a legislative consent Motion when these discussions are ongoing. I do not particularly want to say anything that might prejudice those discussions, but I can confirm that they have been happening on a constructive basis, and I hope that they will provide us with a way forward.
My noble friend Lord Maclennan asked about our response to Miss Fabiani, who is the convenor of the committee. I can confirm that on 20 January the Secretary of State wrote to her and again made it clear that constructive discussions are under way. He also indicated that in addition to reviewing the report of the Scottish Parliament, the Government would have to have regard to comments and contributions made in your Lordships’ House on the Bill. I think I am right in saying that the letter contained a paragraph which reminded the convenor of the Scotland Bill Committee that the Government do not have a majority in this House, and therefore we could not necessarily guarantee that any particular amendments would be carried. However, I hope that I can reassure noble Lords that there is constructive engagement on this.
It is also fair to say, as the noble Lord, Lord Browne, pointed out, that there is no clear timetable about when in the progress of a Bill a legislative consent Motion is passed. As I indicated, one was passed in the Scottish Parliament last March, which certainly meant that it was done before Report stage in the House of Commons.
Lord Forsyth of Drumlean
I have considerable respect for my noble and learned friend, and perhaps I may ask him to answer a straightforward question. In the absence of a legislative consent Motion, will the Government proceed with the Bill to Royal Assent, and implement it; or is it their position that without a legislative consent Motion, the Bill will not go ahead? It is important that Members of the Scottish Parliament know the score. As the noble Lord, Lord Browne, said, if one were a Member of the Scottish Parliament who, like the First Minister, was publicly committed to the Bill, one would not want to do anything that might prevent it getting on to the statute book. The fact that the committee report has not even been scheduled for a debate in the Scottish Parliament, when we want to take account of what it has to say, is an affront to democracy—which might be a strange thing to say in this unelected House.
Lord Wallace of Tankerness
My Lords, I sought to indicate that if discussions are going on, it might be premature to go ahead with a legislative consent Motion. That could prejudice the discussions when in fact there is an opportunity for agreement. I do not want to say anything that might be seen as a threat and jeopardise the position, as that would not be helpful to the process. We want to achieve a process in which a further legislative consent Motion can be passed by the Scottish Parliament, and I do not wish to say anything in the debate to prejudice that. I say that particularly as an engagement has taken place. However, as the noble Lord, Lord Browne, made clear, many powers that will be available in this Bill are ones that the Scottish Government have been calling for. The recently published document on infrastructure planning is actually predicated on carrying forward to fruition the borrowing powers which the Bill makes available.
Lord Forsyth of Drumlean
I am sorry to press my noble and learned friend. I am asking not about the negotiations but about the constitutional position. So far as the Government are concerned, is the constitutional position such that they will not proceed to put this legislation on to the statute book in the absence of a legislative consent Motion—or might they? I do not wish to prejudice the negotiations but I do want to have clarity on the status of legislative consent Motions. The noble Lord, Lord Sewel, gave us his view. I want to know the Government’s view on the status of legislative consent Motions. The Motions apply not only to the negotiations on this Bill but to Section 30 orders.
Lord Wallace of Tankerness
My Lords, the point on Section 30 orders is clear—it is in statute. Statute law requires the consent of the Scottish Parliament and of each House in this Parliament. A convention is just that, a convention; it is not enshrined in statute. However, as the noble Lord, Lord McConnell of Glenscorrodale, said, if a convention has been operating for a period, you have to be careful about how you deal with it. I am not going to say anything today that might prejudice the way in which that convention is dealt with. Equally, although there is a legislative consent Motion outstanding, I very much hope that there will be a further one to which the House can have regard before we reach Report.
I shall come to the question asked by the right reverend Prelate in a moment. However, we may well have completed the Committee stage before we have the report of the Scottish Parliament committee. At one stage it seemed possible that we might receive it but, for reasons of timing, that has not happened. There is certainly nothing sinister about it, and I do not think that the Scottish Parliament necessarily expects that we would hold back our deliberations in Committee until the legislative consent Motion had been tabled and debated. I know that the noble Lord, Lord Sewel, is desperate to intervene.
Lord Sewel
I thank the noble and learned Lord for giving way. So far as I can remember, and I may well be wrong, a legislative consent order can be passed at any time up to immediately before the last amendable stage of a Bill in this Parliament.
Lord Wallace of Tankerness
That accords with my recollection. Given the limitations on amendments tabled at Third Reading in your Lordships’ House, I am not going to get into a discussion on whether it would be before Third Reading or before Report. However, that—as enunciated by the noble Lord, Lord Sewel—accords with my understanding of the convention.
It is also important to note what has been noted by a number of contributors to this debate—that not only has the Bill been passed by the elected House, its content was included in the 2010 general election manifestos of the Labour Party, the Liberal Democrats and, substantially, the Conservative Party. Each party which had been party to the Calman commission process made a commitment in its respective manifesto to take it forward. It is quite a rare event in politics to be criticised for implementing your manifesto commitments. It rather stands things on their head if for some reason you are criticised for actually doing what you said you would do.
The noble Lord, Lord Browne, asked me as a member of the Calman commission—I suppose that my declaration of interest will apply throughout these proceedings—what response the commission received. I think that it is fair to say—there are other members of the commission present in your Lordships' House today—that we were not inundated with suggestions about where the boundary between devolved and reserved matters should fall. Many of the representations that we did receive—there were not a particularly large number—are reflected in the Bill before us. However, it was strongly represented to the Calman commission that the 1998 Act would have to be revisited because of the lack of financial accountability of the Scottish Parliament. That was understood when the Act was passed. We have had since 1999 a Parliament that has had complete discretion over how it spends the money it receives but precious little responsibility for raising it. I think that my noble friend Lord Steel said in a Donald Dewar lecture that a Parliament that was 100 per cent dependent on its revenue from another Parliament would have to address that issue. That is what we seek to do in the Bill. As the Calman commission proposals have been around since 2009—they elicited a White Paper from both the previous and the present Administrations—I suspect that many of them, to some extent, have already been banked. However, as the noble Lord, Lord Browne, indicated, these are very substantial proposals that should not be minimised. They will give to the Scottish Parliament a degree of financial accountability that does not exist at the moment. That is one of the reasons why we want to make progress.
The right reverend Prelate asked about the overlap of the Scotland Bill and a referendum campaign. I think it is fair to say that it has been known since last year’s election, and before the Commons debated the Bill on Report, that we would have a referendum campaign at some point. That is something that we have to take account of but it has not suddenly come up. It was clear in the Second Reading debate that we would go into a referendum campaign at some stage. However, the Bill’s powers are substantial and we should continue to make progress with it.
The noble Lord, Lord Empey, raised some important issues about the referendum campaign that will have to be debated, as the substance of that independence debate, once the process is resolved. I think that many of us look forward to engaging in that debate and making a positive case for Scotland being part of the United Kingdom. The noble Lord, Lord McConnell of Glenscorrodale, warned that the First Minister was perhaps taking the view that the way to get rid of bad tenants is for them to annoy the neighbours. It is a good analogy up to a point, but the point is that we are not tenants. We helped to build the house and we co-own it. That is why the union is so valuable to us.
My noble friend’s Amendment 85 will allow us to return to these matters later in Committee. As I indicated earlier, although the Scottish Parliament has considered the Bill, your Lordships' House should be able to consider it in detail too. I am conscious that there are a number of your Lordships present who were here during the debates in 1998. I think that those debates well served the Scotland Bill, which became the Scotland Act 1998. The kind of deliberation that your Lordships can bring to a constitutional measure such as this is an important part of the process. I encourage noble Lords to continue deliberations on the Bill, and I hope that we can now proceed to do so in Committee.
Lord Forsyth of Drumlean
My Lords, we have had a really good debate. My view that the debate would take half an hour has not worked out entirely right—we have had two hours and 17 minutes of debate. It is fantastic that we have had such a turnout given that the debate was scheduled for the Thursday after Burns Night when many of us would have been in Scotland and perhaps not as bright and breezy as people obviously were this morning.
I do not propose to respond to all the points but I thank everyone who contributed to the debate. I am not sure whether I should thank the noble Lord, Lord Foulkes, for praising me for acting against my party interest in taking the view that I do on the union. Being serious, I think that we all recognise that the future of the United Kingdom is an issue that is above party, as this debate has demonstrated.
My noble friend Lord Sanderson talked about competition between consultation papers. Although I believe in competition, in this case it may have led to a certain disorder in the marketplace. It is really disappointing that the idea of carry-over proposed by the noble Baroness, Lady Liddell, cannot work, because that would have been a solution. I have to say to my noble friend Lord Sanderson that the last thing we want is another Bill to deal with a referendum in the next Session of Parliament, when we will by all accounts have to deal with the future of this House, which I think will take on considerable time and turbulence.
The noble Lord, Lord Wigley, is right to be concerned about language, but I just ask him to spend half an hour on the internet looking at what the cybernats write about many of those who have spoken in this debate. If he could convey those views about language to them, it would be very much appreciated.
The noble Lord, Lord Kerr, argued that it was important that there should be nationalist Members in this Chamber in order to put their point of view, but he seemed to have a bit of a wobble when I suggested that UKIP might be treated in the same manner. The right reverend Prelate the Bishop of Chester made the key point that it is important that this debate is seen to be carried out respectfully. That means that the consent of the Scottish Parliament is fairly important, a point made by the noble Lord, Lord McConnell. He criticised the Prime Minister for intervening perhaps a little late in the debate. That might be a fair criticism, but I do not think that any of us could have expected the First Minister to have made quite so many changes so quickly in response, so perhaps we have caught up with a timetable that would otherwise have applied.
The noble Lord, Lord Hughes, who I believe celebrated a major birthday recently, and who has a long experience in these matters, reminded us of the—I shall be careful with my language—flexible view on devolution which the First Minister has taken. He has been against it; then, in 1998, he campaigned with the Labour Party for it; then he went back to Scotland in 2004 and denounced devolution as a disaster; and now he is the high priest of devo-max, because nobody else seems to be talking about it.
I have great sympathy with the noble Lord, Lord Sewel. He shares with the noble Lord, Lord Barnett, the fate of having something named after him which he is going to spend the rest of his life denying any responsibility for.
It was very important to have the contribution of my noble friend Lord Steel, who was the first Presiding Officer of the Scottish Parliament. Of course, in the original Scotland Act, it was thought that the electoral system had been designed so that no one party would be able to get a majority, and that it was unnecessary to have a House such as your Lordships' House to be a check and balance against the Executive, because the committee system would ensure a balance. Well, it has now turned into almost a one-party Parliament. The nationalists have a majority in the committees and there is no check and balance. Therefore the role of this House is even more important. The fact that the current Presiding Officer was taken from the same party underlines the lack of sensitivity to the point so well made by my noble friend.
In his address, the noble Lord, Lord Empey, reminded us of how important it is to get these matters right, and that the balkanisation of Britain is a matter that concerns every part of the United Kingdom.
My noble friend Lord Maclennan reminded us that absence of consent is not acceptance. I agree. The noble Earl, Lord Mar and Kellie, referred to the absence of the SNP as Banquo’s ghost. I plead with him to find another analogy because, of course, Banquo’s successors inherited the crown.
Finally, in an excellent speech—I hope this is not damaging for him—the noble Lord, Lord Browne, set out the answers. He reminded me of what the noble and learned Lord, Lord Irvine of Lairg, said about the West Lothian question in response to my pressing him on where we were on the legislative consent Motion—a view which was echoed by my noble and learned friend in his excellent reply—which was that, with some questions, the answer to the question is not to ask the question. So on the basis that we do not ask the question now and make progress in the interests of what I accept is the democratically expressed views of the Scottish people, I beg leave to withdraw the amendment.
Baroness Anelay of St Johns
My Lords, it may be for the convenience of the House if I explain an arrangement that has been agreed in the usual channels to facilitate a short break for those who have taken part in at least the preparations for the Scotland Bill Committee so far. We will start the debate on Clause 1 stand part and the noble Lord, Lord Browne of Ladyton, will make his speech. At the conclusion of that speech the House will resume. It will finish its Committee considerations for 45 minutes, during which time other business in the name of my noble friend Lord Dykes will be taken. At the end of that 45 minutes, whoever wishes to follow on from the stand part speech of the noble Lord, Lord Browne, will be in a position to do so.
Lord Browne of Ladyton
My Lords, for obvious reasons, I shall be brief. The purpose of this opposition to Clause 1 standing part of the Bill is to probe what appears to be a selective implementation by the Government of the Calman commission’s recommendations. I say “appears” because I am not entirely sure, and I shall explain why I use that word.
Clause 1 devolves to Scottish Ministers powers that currently reside with the Secretary of State for Scotland pertaining to the administration and conduct of Scottish Parliament elections. However, it appears that it does not devolve these powers in their entirety. The purpose of this debate is simply to probe why it is that the Government have sought to retain the reservation of some of these powers apparently contrary to the recommendations of Calman. I can assure noble Lords that I do not intend to press this issue to a vote. However, I hope to draw out from the Minister a more comprehensive account than I have been able to ascertain so far of the rationale behind the Government’s choice of powers for devolution in Clause 1. It may be simply that all the powers which are clearly about the administration and conduct of Scottish Parliament elections have been devolved and that those that are, in part or totally, about the electoral system have not. If that is the answer and it can be explained, I will be happy to accept it.
It is my understanding that Clause 1 devolves responsibility for the conduct and administration of Scottish Parliament elections and for the consequences of irregularities. However, it reserves powers, particularly, in relation to the registration of electors, the abandonment of a constituency poll or notice of it being countermanded, the procedure for filling regional MSP vacancies—an issue to which we will return in another amendment—and the application and modification of electoral law. I would be grateful if the Advocate General could confirm whether this is an exhaustive list. If it is not, what else is reserved?
The Calman commission made a clear recommendation in paragraph 5.1 of its report that the powers of the Secretary of State for Scotland relating to the administration of elections to the Scottish Parliament should be devolved. However, the commission did not discriminate between such powers as to their suitability for devolution. In contrast, it stated explicitly that it was unconvinced that there are strong constitutional or practical arguments against their devolution, particularly when considering that responsibility for local authority elections is already devolved to the Scottish Parliament. This view was widely supported across civic Scotland and by political parties.
By choosing to devolve powers over certain administrative functions but not others, the risk is that Clause 1 will continue the fragmentation of responsibility for Scottish elections, which is precisely what Gould, among others, identified as being the key factor in the chaos of the Scottish parliamentary and local government elections on 3 May 2007—chaos which, as we all know, resulted in the disenfranchisement of in excess of 100,000 Scottish voters. We must avoid that at all costs.
From the Scottish Parliament’s point of view, both its previous and present Scottish Bill Committees recommended that the list of powers that remain reserved in this area should be reduced. In particular, the committees highlighted powers over the procedure for filling regional seat vacancies and rules relating to disqualification as more properly residing with Scottish Ministers.
It is vital that the lessons from the 2007 elections are heeded and that the responsibility and rules surrounding Scottish elections are rationalised. The devolution of powers over the administration of Scottish parliamentary elections is a natural reflection of the Scottish Parliament’s maturity as a democratic body and of the principle that matters should be determined at the level closest to those—the Scottish people—who are affected by them unless good reason can be seen otherwise. I have initiated this debate simply to ask the Minister to set out good reasons for each of the powers for the administration of elections that remain reserved so that the House may judge whether they are compelling reasons and whether we are being faithful to Calman.