House of Lords

Thursday 2nd February 2012 Lords Chamber

Thursday, 2 February 2012.

11:00

Prayers—read by the Lord Bishop of Derby.

Algeria

Thursday 2nd February 2012 Lords Chamber

Question

11:06

Asked by

[Lord Risby]

To ask Her Majesty’s Government what action they are taking to develop business and political links with Algeria.

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, Algeria is an important partner. The visit by my right honourable friend the Foreign and Commonwealth Secretary in October and the annual political dialogue between the Under-Secretary of State, Mr Burt, and his counterpart, Mr Messahel, have strengthened our links. I visited in November to discuss trade, energy and foreign policy, and the visit in January by my noble friend Lord Marland focused on our commercial and energy relationships. UK exports to Algeria were up 67 per cent last year. British businesses are the largest in Algeria’s hydrocarbon sector, and we are actively pursuing opportunities in education, pharmaceuticals and finance. Algeria has also shown a strong interest in closer links with the Commonwealth.

[Lord Risby]

My Lords, there can be few countries that have suffered more violence and destruction in the past than Algeria, but more latterly there has been stability in a very turbulent region. Will the Minister welcome the moves towards political reform that are now under way, culminating in elections later this year and a substantial number of women parliamentarians? Given this and the enormous levels of natural gas that exist in the country, does my noble friend agree that, with the extraordinary and exceptional friendship currently being shown to us by the Algerians, we should readily react to this in view of the important strategic, political and commercial opportunities that arise?

[Lord Howell of Guildford]

Yes, we fully recognise the points that my noble friend has rightly made. I congratulate him on the very successful visit that he and some colleagues recently made to Algeria. This is a country that has emerged from a very dark period. It has some way to go in some crucial areas but it is, in resource terms, immensely rich. It has a determination to move back into the comity of nations in an effective way and I believe that we should work closely with it. I think that the frequent visits that Ministers from my department have paid reflect that reality.

[Lord Anderson of Swansea]

My Lords, the trade and energy links are indeed important but so, too, are human rights. The noble Lord must be aware of a growing tide of Islamism creeping over Algeria. It is shown at two levels: one is in the closure of many places of entertainment and the second, more importantly, is in the closure of places of worship. I know that Alistair Burt at the Foreign Office and Commissioner Füle have made representations. Has there been any response to the British and EU representations in respect of human rights?

[Lord Howell of Guildford]

There has. The noble Lord is right to raise questions of human rights, which are obviously our central concern. So far as concerns jihadism and more extreme versions of Islamism, while in the south of Algeria and to the south of Algeria there are continuing difficulties which need to be watched and addressed very carefully, in the north the situation is much better controlled. The general tendency which was feared a decade or so ago—of extreme jihadism taking over—has been checked and resisted. In fact, I think that Algeria is moving on from that phase.

As to the question of religious discrimination, there has been a constant exchange, and the noble Lord mentioned Mr Burt’s dialogue with Ministers. The laws that control where churches or other religious institutions can be built apply to all faiths—this is not just discrimination against Christians. We have discussed this very carefully with Ministers in Algiers. They have assured us that the laws are applied in a relatively light-handed way and that discrimination is not against one faith. It governs all building, including of mosques. Therefore, it is a matter that we are watching. I cannot promise that immediate results have been achieved but we are working at it.

[Lord Chidgey]

Is my noble friend aware that, according to the UKTI report, Doing Business in Algeria, for every £1 worth of goods that we export to Algeria, Algeria exports £2 worth of goods to us? That is resulting in a significant trade deficit, which, according to the current facts, is set to double every two years? According to UKTI, this is a mutually beneficial arrangement. Does this not smack somewhat of complacency as far as our exports are concerned?

[Lord Howell of Guildford]

No, I do not think it does because the big export from Algeria to us is liquid natural gas. Algeria is a major exporter to Europe of LNG. It is developing that capacity vigorously. There are further huge areas to be licensed, explored and developed in Algeria and we hope that British firms will have a major involvement in that as the licensing system unfolds and improves. I do not think that my noble friend’s figures fully reflect the fact that I have just pointed out to him, that for our daily energy and for keeping the lights on we need good supplies of liquid natural gas as well as the natural gas that we get from the North Sea, Norway and other places.

[Lord West of Spithead]

My Lords, the Minister has clearly articulated the fact that AQ of the Maghreb are now concentrated in the south. Have we had success in convincing European nations that the paying of ransoms has been one of the reasons for AQIM increasing its power and that we really must not do that?

[Lord Howell of Guildford]

I hesitate to tick the box marked “success”, but this matter is certainly very much on our minds and it is being discussed. In fact, I think it is being discussed this week at the United Nations, among other places, and it has certainly been discussed with our European colleagues. The noble Lord is quite right to draw attention to this. The ransom is the Danegeld. It will never solve the problem but will make it worse. As a government, we are totally against any paying of ransom in all such circumstances.

[Lord Hunt of Kings Heath]

My Lords, the noble Lord mentioned educational links in his first Answer. He will be aware of the restrictions on overseas students coming to the UK as a result of actions by the Government. Is he able to comment on the impact that that has had on students from Algeria coming to the UK as education is a very important export earner for this country?

[Lord Howell of Guildford]

Of course, we welcome bona fide students to our universities and a healthy student exchange. The matter was not raised with me during quite an extensive stay in Algeria a few months ago, but it is a matter that I shall look at again and check whether the Algerians have any particular problems to raise with us.

Credit Unions

Thursday 2nd February 2012 Lords Chamber

Question

11:13

Asked by

[Lord Kennedy of Southwark]

To ask Her Majesty’s Government what action they are taking to promote the accessibility of credit unions.

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)]

My Lords, the Government wish to see greater diversity in financial services, and credit unions have an important role to play. The recent credit union legislative reform order has opened up membership to different groups such as housing association tenants and employees of national companies working in credit union areas. A feasibility study has looked at how the Government could support credit unions. The study reported to Ministers in December and an announcement will be made in due course.

[Lord Kennedy of Southwark]

Although progress is moving in the right direction, I think it is extremely sluggish. If I asked a question about nurses, I would expect a Health Minister to reply; if I asked about teachers, I would expect an Education Minister to reply. I ask a question about credit unions and three departments could reply in this House. I contend that that is not joined-up government. My question for the Minister is: who is the driver?

[Lord Freud]

My Lords, I am the driver. I commissioned a report on credit unions last year. The DWP is the paymaster for the credit union movement. We have spent £113 million in the past six years. We are determined to go on funding this really important element of financial inclusion and to create an industry that will be viable in the long term and will support the poorest in our society.

[Lord Martin of Springburn]

My Lords, what limit is there on individual credit union loans? Will the Minister say what figure the credit unions are restricted to? I am very keen that self-employed tradesmen and women who want to start off with a small quantity of tools and equipment are able to go to a credit union in their locality rather than a bank, because banks at the moment are not very helpful to self-employed people.

[Lord Freud]

My Lords, there are various restrictions on credit unions at the moment. I am not aware of an absolute limit on loans. Clearly, the unions need a financially viable business structure. They do not have one at the moment. A typical loan from a credit union is about £500. It costs the union more than £75 to make the loan and it earns less than £63, so getting a new mix of business is vital.

[Lord Newby]

My Lords, does the Minister agree that the next big step required to increase the volume of credit union activity is to make credit union accounts accessible via post office counters? Will he assure the House that this option is under active consideration as part of the wider review that he described?

[Lord Freud]

Yes, my Lords, that aspect of the review is under active consideration.

[Lord Borrie]

The Minister referred to the growing significance of credit unions, and of consumer credit provided by the unions. What proportion of outstanding consumer credit at the present time is owed to credit unions? What proportion of the totality of consumer credit do they cover?

[Lord Freud]

The proportion is disappointingly small; it is 2 per cent. That compares with a figure of 44 per cent in the United States and 75 per cent in Ireland. It is a very small industry here. Our ambition is to double its size in the next five to seven years. Nevertheless, we need to look at various other financial instruments, particularly as we introduce universal credit.

[Lord Clarke of Hampstead]

My Lords, I am sure that the House is delighted that the report that the Minister asked for is coming. Should not part of the report state that local authorities should be encouraged to help with the start-up costs of credit unions, in particular with the very high council taxes that are levied on premises? I speak with experience of a very successful credit union in St Albans of which I am a member. Start-up costs are very difficult and local authorities could play a good part in helping to create these unions.

[Lord Freud]

Yes, my Lords, credit unions are local organisations. It is very important that social units in the locality help them. Just as important as local authorities are social housing groups. There are already 20 such groups working with credit unions, which is very important.

[Lord Elystan-Morgan]

Does the Minister agree that the situation is acute because needy people must be kept out of the clutches of loan sharks? I appreciate that successive Governments have shown great good will in this matter. Will he study the situation in the Republic of Ireland, where, as he said, some 50 per cent of personal credit is represented by credit unions? In New Zealand and Canada the figure is between 20 and 22 per cent. Will he take those systems very much into account and do something that involves a substantial injection of public money into this investment?

[Lord Freud]

My Lords, we have made clear that we are prepared to support this industry, but we are determined to support it in such a way that it becomes viable in the long term. We are attacking illegal loans, which are coming down a bit. There are various supports for poorer people, such as payday loans, rent-to-buy and home credit. It is a very complicated picture, but we are determined to push this new factor as hard as we can.

[Lord Cormack]

My Lords, my noble friend said that the aim is to double from 2 per cent to 4 per cent in between five and seven years. Can we not do better than that? Can we not have a more ambitious aim?

[Lord Freud]

My Lords, it is very difficult to grow an industry from an organisational base that is not yet viable. We need to make sure that individual institutions are able to handle the growth that we want them to take on. That is not just about money; that is about trying to make the right changes to management and organisation. It is not an easy thing to do.

Alcohol

Thursday 2nd February 2012 Lords Chamber

Question

11:21

Asked by

[Baroness Finlay of Llandaff]

To ask Her Majesty’s Government how they plan to reduce alcohol harm.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, we will set out the Government’s approach to tackling alcohol-related harm in the forthcoming alcohol strategy. It will address the full range of harm from alcohol, both health and social impacts, and will describe the respective future roles of central and local government, the third sector, other agencies and people.

[Baroness Finlay of Llandaff]

Today’s British Liver Trust report shows that 28 per cent of deaths in 16 to 24 year-olds and almost 9,000 deaths a year in this country are alcohol-related. Do the Government recognise that there is now a need for social strategies that look at issues such as minimum pricing and licensing controls of home delivery services that provide night-time party top-ups when parties have run out of alcohol and people are already drunk, as well as criminal justice controls so that breathalysers can be used compulsorily, given that 45 per cent of violent crime and 37 per cent of domestic violence are alcohol-related?

[Earl Howe]

My Lords, the Government fully recognise the adverse effects on society of alcohol misuse and the devastating consequences that it can bring to individuals. That is why we feel it is so important to issue the alcohol strategy that I mentioned in my initial Answer. I understand that there are no plans in government to widen the use of breathalysers, but we are clear that irresponsible sales of alcohol need to be controlled, and that area will be covered in the strategy. On the noble Baroness’s particular question on pricing, we recognise that the irresponsible sale of alcohol at a loss to gain wider trade can lead to binge drinking. That is clearly undesirable for all sorts of reasons. We are committed to ending the sale of heavily discounted alcohol, and that will send a message to retailers and, indeed, the public that we take the issue very seriously.

[Baroness Trumpington]

My Lords, may I ask the Minister whether the answers he has been giving fit in with the order that my noble friend Lord Strathclyde has on the Order Paper for later today?

[Earl Howe]

My Lords, my noble friend is ahead of me, and I will have to write to her.

[Baroness Hayter of Kentish Town]

My Lords, has the Minister seen the letter today from the churches and charities to the Prime Minister asking that there should be a minimum price on alcohol? Will he agree with that recommendation and do that rather than rely on the industry in this case?

[Earl Howe]

My Lords, as I have already said, we recognise that the irresponsible sale of alcohol at a loss or heavy discount is undesirable. We know that price is important in this equation but we also know that it is not the only factor that affects demand for alcohol. We need to find ways to change people’s relationship and behaviours with alcohol. We do not believe that the only way to do this is by more rules and regulations but the issue of price will be addressed in the forthcoming alcohol strategy.

[Lord Taverne]

My Lords—

[Lord Harrison]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, perhaps we can hear from my noble friend Lord Taverne and then from the other Benches.

[Lord Taverne]

My Lords, the Sheffield University report to NICE in 2010 pointed out the extreme importance of price rises. It came to the conclusion that a 10 per cent price rise would, among other things, reduce hospital admissions by something like 50,000 a year, crimes by something like 96,000 and absenteeism from work by something like 500,000 per annum. Very similar huge social benefits would also come from introducing a minimum price. Does the Minister agree that price rises are probably the most important single weapon in dealing with this social matter?

[Earl Howe]

My noble friend makes a very good point, which is why the Government have taken action on tax. We will be raising alcohol duty by 2 per cent above inflation every year to 2014-15. We introduced a new additional duty on high-strength beers to address the consumption of cheap super-strength lagers and a reduced rate of duty on low-strength beers to encourage consumers to switch to those brands.

[Lord Imbert]

My Lords—

[Baroness Massey of Darwen]

My Lords—

[Lord Strathclyde]

My Lords, there is time for both noble Lords. Perhaps we may start with the noble Lord, Lord Imbert.

[Lord Imbert]

In the light of the 60,000 alcohol-related calls answered by the London Ambulance Service alone and the 18,500 alcohol-related crimes of violence in London alone in one year, does that not mean that we should introduce a compulsory alcohol sobriety testing scheme which magistrates can use to sentence in order to reduce this awful number of offences?

[Earl Howe]

The noble Lord is right to point that out. Proposals of the kind he suggests should be considered. As I am sure he will recognise, there is no single solution to the complex challenge of alcohol misuse. We need to look at licensing, pricing, health promotion, the criminal justice system, the role of local authorities, early engagement by the NHS and labelling, and the list goes on. But I am very happy to feed in the noble Lord’s ideas to my department in the work that it is doing.

[Baroness Massey of Darwen]

My Lords, what impact does the Minister think rising unemployment may have on alcohol consumption? He has not mentioned unemployment, which is an important issue. I declare an interest as the chairman of the National Treatment Agency for Substance Misuse.

[Earl Howe]

My Lords, the evidence is that the population’s overall consumption of alcohol tends to fall if incomes are depressed. Particular groups in the population, including some who are unemployed, may consume more alcohol as a result of being unemployed but the evidence does not enable us to quantify this effect. This is one aspect of health inequalities which we are determined to reduce, as we stated in Healthy Lives, Healthy People, a document we published last year.

Libya

Thursday 2nd February 2012 Lords Chamber

Question

11:30

Asked by

[Lord Judd]

To ask Her Majesty’s Government what is their response to reports from Amnesty International about alleged torture and other brutalities in Libya, and what action they are taking to address the situation.

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, United Kingdom Ministers have regularly raised concerns over the treatment of detainees since the liberation of Libya. Following recent reports, my honourable friends and fellow Foreign Office Ministers Mr Jeremy Browne and Mr Alistair Burt have raised the issue with the Libyan Interior Minister, Mr Abdilal, and the Deputy Foreign Minister. We welcome the Libyan Deputy Prime Minister’s recent commitment to investigate all violations of human rights and to bring all detainees under central government control.

[Lord Judd]

My Lords, does not the noble Lord agree that it is going to take more than words to deal with this situation? Does he not also agree that, just as our highly effective and professional armed services played such a key part in bringing about the downfall of Gaddafi and his regime, we must be as rigorous in our resolve to secure the standards of justice, human rights and freedom which were the rationalisation and reason for the rebellion against the existing regime?

[Lord Howell of Guildford]

I would certainly agree with that, and it is reflected in the discussions that Ministers have had in reiterating these concerns. The Libyan Interior Minister is actually visiting this country at this moment and Ministers are in close touch with him. Our ambassador in Tripoli has raised the matter with members of the transitional Government. The noble Lord is absolutely right: words are not enough; actions are required to gain control of the very disparate bodies and groups on the Libyan scene, which is the first problem, and to establish an orderly path towards a strong and democratic system of governance. All this is part of the pattern of tackling what is completely unacceptable behaviour.

[Lord Wright of Richmond]

My Lords, does the Minister accept that these appalling reports from Libya, along with the distressing reports of incidents in Port Said yesterday, argue for perhaps rather greater caution on joining other people’s calls for a change of regime in Syria?

[Lord Howell of Guildford]

The noble Lord touches on a difficult issue. The situations in the countries he has mentioned—Egypt, Libya and Syria—are completely different. We can see the horrors of Syria, including what are apparently child murders and other appalling atrocities, and we are pressing this matter as hard as we can at the United Nations—my right honourable friend the Foreign Secretary has been in New York for the past two days—to get full UN backing for the efforts of the Arab League and all those who want to bring to a halt the ghastly situation in Syria. I think that the noble Lord is fully aware of the difficulties at the United Nations in bringing along some of the members of the permanent Security Council, notably Russia and China. However, we are working very hard to bring them in line to meet the appalling situation in Syria.

[Baroness Falkner of Margravine]

Does my noble friend accept that in countries which are emerging from conflict, the building of institutions takes its time and is quite problematic? Can he tell the House whether the ample resources of the Stabilisation Unit and the Conflict Pool might be available to help train Libyan judges and the country’s police force so that they can comply with due process and improve their judicial standards?

[Lord Howell of Guildford]

My noble friend is quite right to draw attention to the fact that it takes time and that these are early days. It is just about a year since the Libyan liberation drama began to unfold. We must be patient but, in addition to what we are doing already, we will examine further means of supporting the training of judges and so forth. I have before me a long list of activities where the UK is supporting the Libyan democratic process and trying to ensure that it rolls forward smoothly. I could delay the House with the details, but I will not do so. However, my noble friend has certainly touched on one very important aspect.

[Lord Davies of Coity]

My Lords, some time ago when we were intervening in Libya, I asked the noble Lord about the occurrence of tribalism. Can he now say whether the brutalities that are taking place in Libya are as a result of tribalism out there?

[Lord Howell of Guildford]

I am afraid that I cannot give the noble Lord a detailed and informed answer because it is very hard to get all the information. There are tribal enclaves and there have been problems, as demonstrated by the continuing support of some villages and towns for the now totally discredited and removed Gaddafi regime. This support may well be linked to tribal and ancestral loyalties, and everyone recognises that the Libyan scene remains problematically influenced by many tribal traditions and rivalries. I can say no more than that for now and, while I shall look into it, I do not think that we are going to find very much more at the moment.

[Baroness Berridge]

My Lords, is the situation in Libya improving or deteriorating for sub-Saharan migrant workers who were caught up in the initial wave of imprisonment? What efforts is the Foreign and Commonwealth Office making to communicate with Britain’s diaspora communities, who are very concerned about this matter?

[Lord Howell of Guildford]

We are concerned about the matter as well. There is some evidence that some relief is being organised, but the situation remains far from satisfactory and we will keep a very close eye on it.

[Baroness Symons of Vernham Dean]

My Lords, following on from the excellent question of the noble Baroness, Lady Falkner of Margravine, can the Minister tell us what direct support the Foreign Office is able to give through financing the work that the Westminster Foundation for Democracy was doing in Libya, as well as that of the Law Society, which was engaging on some of the very points that the noble Baroness raised, on judge training and establishing the rule of law and functioning courts?

[Lord Howell of Guildford]

We support all these aspects. As I think the noble Baroness knows, although there was a dip in the funding for the Westminster Foundation for Democracy, there has been a modest but welcome increase for the current year. That reflects our belief, which we share with her, that its work is an extremely valuable part of the scene. As to the Law Society and other non-governmental but very important operations of the kind that she has mentioned, these are things that we encourage. We should certainly look at and develop judge training. We are looking at projects in civil society, electoral preparations, prison reform, asset tracking and public financial management. We are supporting the role of women through funding the first women’s convention in November; we are helping the Libyans strengthen their institutions and restore public services. There is a whole list of other areas in which we are involved. All these are very important. We want to see Libya emerge as a stable, democratic country, bringing peace and prosperity to its much benighted citizens.

Housing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2012

Thursday 2nd February 2012 Lords Chamber

Licensing Act 2003 (Diamond Jubilee Licensing Hours) Order 2012

Misuse of Drugs Act 1971 (Amendment) Order 2012

Motions to Approve

11:37

Moved by

[Lord Strathclyde]

That the draft orders be referred to a Grand Committee

[Baroness Royall of Blaisdon]

My Lords, will the Leader of the House make a Statement to the House on Monday, first, on when the Welfare Reform Bill will return to this House following Commons consideration of Lords amendments yesterday and, secondly, on the procedural impact on the Bill of the declaration of Commons financial privilege in relation to a number of the Bill’s clauses?

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, I accept the invitation that the noble Baroness the Leader of the Opposition has made. First, the decision on when we will take Lords consideration of Commons amendments on the Welfare Reform Bill will be made in the usual channels in due course and will then appear on the Order Paper, which I hope will be for the benefit of the House. We will have the discussions in the usual channels as soon as possible.

Secondly, the clerks of the House stand ready to give any noble Lord procedural advice, but perhaps I may repeat something that I said yesterday afternoon: namely, that privilege is nothing new, having existed for nearly 350 years, and that any amendment with implications for public expenditure might involve privilege, but that it is a matter for another place, not for me or us. As the previous Clerk of the Parliaments stated in a recently published memorandum,

“until the Commons asserts its privilege, the Lords is fully entitled to debate and agree to amendments with privilege implications”.

There is nothing new in any of this. The Commons asserts its privilege in almost every Session. It has done so already this Session and did so regularly in the previous Parliament. Indeed, the previous Department of Work and Pensions Bill that attracted financial privilege was in the Session 2006-07 when the noble Lord, Lord McKenzie of Luton, himself was the Minister.

It is also worth reminding noble Lords that the Joint Committee on Conventions, which sat under the chairmanship of the noble Lord, Lord Cunningham and reported in 2006, said:

“If the Commons have disagreed to Lords Amendments on grounds of financial privilege, it is contrary to convention for the Lords to send back Amendments in lieu which clearly invite the same response”.

The House took note, with approval, of that report on 16 January 2007. If the Commons has asserted privilege, it is simply not profitable for this House to persist.

I hope that that is a helpful explanation of where we are, but I am grateful to the noble Baroness for giving me the opportunity of making this short statement.

[Lord Newton of Braintree]

My Lords, I do not know whether this is in order, but if it is I would like to do it. My noble friend should know that concern about this matter is not confined to the other side of the House. I also think that, notwithstanding what has just been said or what the previous Government may or may not have done in 2006, this raises real questions about the relationship in practice as it has existed over many years between the two Houses of Parliament. I think that we are entitled to an opportunity to hear a Statement and ask questions about just where that relationship is now going.

[Lord Grocott]

My Lords, I am prompted to stand because of the reference to the Cunningham committee on conventions. I simply put this serious question to the Leader of the House. I recognise the great difficulty at times—which was expressed in the length of his answer—in interpreting financial privilege, and the difficulty that he has in convincing Members of the House, including Members on his own side about if and when it should be applied. But can the noble Lord imagine himself telling 300 elected senators that matters such as benefits received by cancer patients or for disabled children were none of their business whatever and if any of their constituents raised any of those issues with them, as constituents inevitably would, they would have to explain that there was nothing they could sensibly do because it was not within their powers?

His position in trying to justify and hold that line would be quite impossible. Clause 2 of the draft Bill as it stands, which still insists that there will be no change in the conventions between the two Houses in the event of an elected House, is absolute nonsense. I therefore just put it to him as I did in perhaps less impassioned terms yesterday, that this is really an issue that the committee under the chairmanship of my noble friend Lord Richard must examine before it reports and advises the two Houses of Parliament.

[Lord Lawson of Blaby]

My Lords, I support very strongly my noble friend Lord Newton's point. While the House of Commons is perfectly entitled to claim privilege, it is not compelled to do so. The constitution of this country operates by conventions. It is one of the conventions of the constitution that this is evoked very sparingly and on rare occasions. For it to be invoked promiscuously is completely contrary to the conventions of the constitution. This raises serious issues and the House of Commons would be wise to think again.

[Baroness Symons of Vernham Dean]

My Lords, I support what the noble Lord, Lord Lawson, has just said and revert to the Cunningham committee report, which was very clear on the question of conventions developing and changing over a period of time. It specifically addressed whether the conventions should be codified and decided that that was not helpful to the way in which Parliament operates, but that conventions could develop. The Leader of the House quoted only part of the Cunningham report and not the point in its entirety.

11:45

[Lord Mackay of Clashfern]

My Lords, when my noble friend makes the Statement that he indicates he wishes to make, I wonder if he could possibly indicate to your Lordships which provisions of the Welfare Reform Bill prevented it from being a money Bill.

[Lord Cormack]

My Lords, I noticed that when my noble and learned friend made his point a second or two ago, my noble friend on the Bench shook his head as the reference was made to a Statement. I implore my noble friend the Leader of the House to make a detailed Statement, because the relationship between the two Houses is fundamental to the working of our constitution. There is a fear among many Members on this side of the House that there is an overassertion of privilege, and that there may be reasons behind that. Therefore, it is important that this House has a proper opportunity to debate these issues at an early date.

[Lord Alderdice]

My Lords, apart from the question of the rights and conventions, there may also be a question of communication. The Reasons Committee of the House of Commons could perhaps be a little more forthcoming as to precisely why it feels that it is important to exercise privilege. It is not an absolute requirement. Perhaps it might be possible—without in any way encroaching on the rights of the other place—to explore whether a little more full communication might be possible, particularly in these areas of contention.

[Lord Martin of Springburn]

My Lords, I had no intention to come in yesterday and I had no intention to come in today. I rise only to try and be helpful, if that is possible. I took the bother to find out in Hansard what the Speaker said. He said:

“I must draw the House’s attention to the fact that financial privilege is involved in a substantial number of Lords amendments”.

He did not say “all” the Lords amendments, but a “substantial number”.

“If the House agrees to these amendments, I shall ensure that the appropriate entry is made in the Journal”.—[Official Report, Commons, 1/2/12; col. 826.]

He was not saying any more than that it would be put in the Journal—in other words, it would be put in the minutes of the meeting. I think we are making heavy weather of this matter, if you do not mind me saying so. The House down the other end rejected the amendments. Those amendments then come back to us for consideration; and when they do, each and every one of us can go and seek advice from the Clerk of the Parliament and we can also get a Statement from the Leader of the House—it is a tall order.

It has been hinted again that there might have been influence from the Government on what the Speaker had to say. Let me say that it was like penance every week having to listen to both the opposition and government Chief Whips because they were always complaining and moaning. However, the one thing when it comes to privilege is that it is the Speaker and his advisers alone who decide. The worst thing that a government Whip—or an opposition Whip, if he feels it is to his advantage—can do is to come to the Speaker and seek to influence matters like this. It would be counterproductive. I ask noble Lords to wait until the amendments come. I hope I have not given the Clerk of the Parliaments too onerous a task.

[Lord Elystan-Morgan]

My Lords, I wonder if the Minister will agree that the letter of the law has been absolutely clear for three centuries—any money element can give rise to a situation where privilege can be successfully claimed. However, it is not entirely clear, from looking at Erskine May, whether it turns on some discretion vested in the Speaker or in interpretation, although it may very well be that the same result is achieved in the end. One either has a liberal view of the situation or a much narrower one. Looking at it legalistically, there is a world of difference between a range of interpretation and a range of discretion. Might I respectfully suggest that this can be settled only by discussion at the highest level and in the most statesmanlike way with the other place; otherwise, a great deal of the function of this House as a revising Chamber will be totally emasculated?

[Lord Forsyth of Drumlean]

My Lords, may I just add to that point made by the noble Lord? I respectfully suggest to my noble friend the Leader of the House that he has a duty to the House as a whole, as well as to the Government’s interests. There have been a series of events that give the impression that the other place, which increasingly sends legislation up here that is not properly considered and debated, is treating this place with some contempt, not least of which is the suggestion that the Parliament Act might be used in respect of the reform of this place. I suggest to my noble friend that the time may have come for him to assert his authority as Leader of the House and have a frank chat with some of his colleagues.

[Baroness Royall of Blaisdon]

My Lords, I note all that has been said and the wisdom that has come from many Members of this House. I have two questions for the noble Lord. First, could he confirm that if the Government so wished they could waive financial privilege? Secondly, in the light of all that has been said in this very short debate and the importance of the work being undertaken by the Joint Committee in relation to conventions, I think that the House as a whole would welcome a Statement from the noble Lord on Monday to further discuss these issues.

[Lord Strathclyde]

My Lords, that was a useful tour around the House on this matter of privilege. From time to time there are debases on privilege in this House, and it is entirely right that we should have them. But as I have explained, the matter of privilege is nothing to do with the Government, although the noble Baroness, Lady Royall, is entirely right that in certain instances the Government can waive financial privilege—if, for instance, they were to agree with an amendment made in the House of Lords or to part of an amendment. As I understand it, neither of those occurred on this occasion.

As the noble Lord, Lord Martin of Springburn, explained yesterday and again today, financial privilege is a matter for the House of Commons alone and, within the House of Commons, it is a matter for the Speaker on advice from the Clerks, not from the Government. I do not think that it would be useful for this House to debate endlessly or take a view of procedures in another place, any more than we would like another place to have a view about the procedures in this House. Both Houses have a longstanding convention that we do not debate the other’s practice, and I think that that is entirely right.

What I sense underlies much of this angst is what the noble Lord, Lord Grocott, talked about, and my noble friend Lord Forsyth—about the possibility of a reform. I am the first to defend the rights and privileges of this House, as I have done continually since I have been Leader. It is perfectly true that in the scenario of an elected House over time, the procedures and powers in this House would evolve; it could well mean that we ended up with a stronger and more powerful House, better able to challenge decisions made in the House of Commons. But that is part of the evolution between the two Houses. It would be a reversal of the evolution that has taken place over the course of the past 100 years, or so, but there is no reason why that should happen. If the noble Lord, Lord Grocott, the noble Baroness, Lady Symons, and others were to amend or wish to amend a Bill on the reform of the House to do that, of course that is entirely possible. I am not sure what the Labour Party’s position is on the powers of the second Chamber. Perhaps this is the kind of positive thinking—or critical thinking, or continual thinking—that the Labour Party needs to do, apparently, and it will let its views be known.

My noble friend Lord Lawson was such a distinguished Chancellor of Exchequer for many years. I do not have the statistics, but I cannot believe that when he was Chancellor of the Exchequer he cheered every time the House of Lords spent more money.

[Lord Lawson of Blaby]

I managed all right.

[Lord Strathclyde]

I am well aware that my noble friend managed perfectly well.

My noble and learned friend Lord Mackay asked whether I was going to make a Statement on whether or why this was not a money Bill. I must say that I have not the faintest idea why this was not a money Bill. I am sure there are very good, practical and well precedented reasons why social security legislation is not deemed to be a money Bill.

A number of noble Lords have suggested that I should make a Statement at some stage next week on privilege. Let me consider that. There is no point making a Statement if we do not add very much more to the amount of knowledge that we already have. We will have an opportunity to debate the Bill when it returns from the House of Commons and when we have decided on a date, but if I can shed any extra light then I will do so. It might be better to have a Question for Short Debate, where we can discuss these matters in the round.

[Baroness Royall of Blaisdon]

My Lords, I have to crave the indulgence of the House once more to quote something back at the noble Lord the Leader from when I was a transgressor on financial privilege. This is a very enlightening piece from Hansard. The noble Lord the Leader said:

“The Government therefore did not seek to debate the substance of my noble friend’s amendment in another place last night; they simply declared it unconstitutional and cited privilege. I do not think that that is good enough. The Government should not hide behind the principle of privilege as a matter of course, because what is constitutional should be a matter for the whole of Parliament. Parliament should not accept the use of the privilege amendment in cases of doubt simply to stifle debate, which is the impression that the Government have given in dealing with my noble friend’s amendments. After all, if the amendments of your Lordships’ House are not to be discussed, what is the point of this House ever agreeing to any amendments? I ask the noble Baroness”—

that is, me—

“to consider this matter carefully with her colleagues in another place, with Members of this House and, perhaps, with the Clerk of the Parliaments and his opposite number in another place to see how this issue can be resolved. If the rights of your Lordships are well understood—not only in their limits but in their reality and usefulness—then none of us should see those rights lightly eroded”.—[Official Report, 25/11/08; cols. 1359-60.]

[Lord Strathclyde]

My Lords, it is always nice to have my speeches quoted and of course we could do this all day. The noble Baroness could quote my rather good speeches and I could quote her equally good ones. In fact, I will requote what I also said to the noble Baroness in that same speech: that she had,

“rightly pointed out that there is a long established position that this House does not insist on an amendment where the other place cites financial privilege, and no one, least of all me, is trying to change that”.—[Official Report, 25/11/08; col. 1359.]

I rest my case.

[The Lord Speaker (Baroness D'Souza)]

My Lords, the question is that the original three Motions in the name of the noble Lord, Lord Strathclyde, be agreed to en bloc.

Motions agreed.

Scotland Bill

Thursday 2nd February 2012 Lords Chamber

Committee (2nd Day)

Relevant documents: 17th Report from the Delegated Powers Committee, 17th Report from the Constitution Committee.

11:58

Clause 11 : Air weapons

Amendment 18

Moved by

[Lord Browne of Ladyton]

18: Clause 11, page 8, leave out lines 16 to 18

[Lord Browne of Ladyton]

My Lords, I speak Amendments 18 and 20 in my name and that of my noble and learned friend. Clause 11 devolves legislative competence to the Scottish Parliament in relation to the regulation of some of the powers on air weapons, as recommended by the Calman commission. The purpose of our amendment is, again, to probe the rationale behind the Government’s selective implementation of the Calman commission recommendations. Amendment 18 seeks to remove the exception that the Government make to the devolution of powers to license air weapons in the case of those weapons designated as “specially dangerous” by the Secretary of State.

The Minister will forgive any deficiencies in the amendment itself. It seeks to improve a definition in an area of law that is fraught with confusion and in serious need of rationalisation. It is a continuing disappointment that the Government—and I think that the previous Government were in the same position about this—have not yet heeded the calls from the Home Affairs Select Committee, among others, on firearms control that call on the Government to rationalise the regulation of firearms in one single piece of legislation. The legislation is difficult to understand as it is presently enacted. None the less, I hope that the amendment will give the House the opportunity to debate the issue of the devolution of air weapons regulation in detail and to tease out from the Government the rationale behind the continued reservation of certain powers for the licensing of these weapons to the Secretary of State rather than devolving them.

Grouped with our amendments is Amendment 19 in the name of the noble Earl, Lord Shrewsbury, who generously shared with me the argument and some of the points that he intends to make in support of it. I do not intend to steal his thunder, but in general terms they test and explore the practicalities of two separate regulatory regimes on this one island. His points are germane to the workability of what is proposed. I look forward to his contribution and, more eagerly, to the Minister’s responses to his contribution and the questions that he will pose.

It will be known to many noble Lords that air weapons are an issue of particular importance to the people of Scotland. There have been too many cases in recent years when misuse has led to terrible consequences, such as the tragedy of two year-old Andrew Morton’s death. The people of Scotland demand action from their politicians and we on this side of the House wholeheartedly support the devolution of powers to Scotland to regulate or, if the Scottish people choose to do so, to ban air weapons, but that is a matter for the Scottish Parliament. We are not blind to the practical consequences of such a change.

We are concerned, however, that the Bill as it stands does not go far enough in granting Scotland the powers that it needs if there is to be a change, and does not faithfully reflect the Calman commission’s recommendations, despite noting from the Calman commission that,

“there are advantages in having common offences relating to the misuse of firearms across Great Britain and that there could be serious disadvantages in having different, unco-ordinated policies”—

the important word there is “unco-ordinated”. The commission advised that,

“if there is appetite to deal with air weapons differently in Scotland than south of the border then the advantages of enabling the Scottish Parliament to do so outweigh the disadvantages”,

and therefore recommended that the regulation of airguns should be devolved to the Scottish Parliament. The commission explicitly rejected the Scottish National Party’s call for the devolution of firearms regulation in its totality, something that we on this side of the House do not support, on the basis that Calman found no evidence that Scotland had a particularly acute problem that demanded distinct legislation as opposed to any other part of Great Britain. However, the commission concluded that there was sufficient reason to discriminate between firearms because of a genuine appetite on the part of Scotland to deal differently with these particular air weapons, and this clear demand outweighed the possible disadvantages of a differentiated system.

It is important that the reason the commission did not recommend the devolution of legislative competence over all firearms was not the cross-border problems of an unco-ordinated policy but because of a lack of perceived necessity for the differentiated policy, and that meant that the balance fell in favour of co-ordination. When the commission found evidence for a real need for devolution, it found in favour of devolution with no exception, despite the fact that some air weapons are clearly as dangerous as other firearms.

However, the Government have decided to exempt those “specially dangerous” air weapons that are subject to special licensing or prohibition by the Secretary of State from devolution. This is clearly contrary to the commission’s recommendations and, in my submission, will only add to the confusion and fragmentation of an already confused and fragmented area of the law—firearms regulation across the UK. Noble Lords will note that this amendment does not remove the exception to air weapons which are prohibited under Section 5 of the Firearms Act 1968, and Section 1(4) of the Firearms (Amendment) Act 1988. However, I would still like to probe the Government’s logic here; to me it seems unclear.

The devolution of legislative competence over air weapons currently banned in the UK would, indeed, create a differentiated system of regulation across the UK, with all the associated cross-border problems. However, the Government must anticipate that the devolution of competence over most air weapons, which is what they propose, is still likely to produce such a result; the only difference being that the prohibition or the regulation of the other air weapons will exist in Scotland and not in the rest of the United Kingdom.

I regret that when this clause was debated in another place, the focus of the debate was largely on the Scottish nationalist obsession with the devolution of powers over all firearms and this issue, although presented to the other place, was not debated or properly answered. I hope that today we will have an opportunity to focus debate on the specific settlement proposed in the Bill and to ensure that the Scottish Parliament is granted the powers it needs properly to address the issue of air weapons in Scotland.

[The Earl of Shrewsbury]

My Lords, with the leave of the House, I wish to speak to my Amendment 19. I declare an interest as honorary president of the Gun Trade Association.

The format of this amendment is not without recent persuasive precedent. The Firearms (Electronic Communications) Order 2011 was made under the authority of Section 8 of the Electronic Communications Act 2000 and provides for the Secretary of State to direct forms of electronic communication that may be used for sending statutory notices under the various firearms Acts. Before giving any such direction, the Secretary of State is required to consult Scottish Ministers, the Associations of Chief Police Officers in Scotland and in England and Wales and “such other persons” as he “feels should be consulted”—a term which the Home Office suggests in its circular must include the main shooting organisations as well.

Clause 11 of the Bill contains no indication of the type of changes to the law concerning low-powered air guns that are envisaged by those who have sought to have controls devolved to the Scottish Government. However, Scottish Government press releases issued under the authority of the present Secretary for Justice have indicated that a form of licensing of air guns has been, and is, under active consideration. The amendment seeks to ensure that full and detailed consideration is given to all the ramifications of any form of legislation by requiring a consultation process that includes a cost-benefit analysis.

The imposition of restrictive legislation on air guns will have cross-border implications on those who travel with firearms to Scotland from other parts of the United Kingdom, from within Europe and from the wider world; or from Scotland to such places. Air guns are generally excluded from most aspects of firearms legislation and are outside the definition of “firearm” for the purposes of the European directive, Article 1(1). Only where the control of firearms has had a particularly troubled history in countries such as Ireland and Northern Ireland are air guns treated in the same way as firearms.

As we all know, the border between Scotland and England is entirely open. Different legislation on each side of an unpoliced border will create major problems in terms of movement of individuals and of air guns themselves. For the trade there will be serious issues in respect of mail order and face-to-face transfers in either direction. Direct sales, either by way of trade or between individuals, will be completely unpoliceable. It seems right that police on both sides of the border should be consulted about potential policing problems, and that the trade on both sides of the border should be consulted about the effects on its businesses.

The burden on the police of a licensing system for air guns will be enormous. Initially, some 500,000 air gun owners in Scotland may be affected but it seems probable that a proportion of owners will not take up the licensing scheme and will either dispose of their air guns or retain them without a licence. There is little chance of the greater proportion of non-compliance being discovered, since there is no record of those who now own air guns. Your Lordships may well be aware that a considerable percentage of air weapons carry no serial numbers, in particular the less expensive and therefore far more common weapons, and are therefore untraceable.

The initial take-up of licensing may be by 500,000 or fewer people. Existing holders of firearm and shotgun certificates total some 67,000 individuals. If a system akin to that for licensing firearms and shotguns were to be imposed on air guns, the burden on the police firearms licensing departments would increase eightfold, at a time when firearms licensing departments are cutting staff and slippage in turnaround of applications is becoming far worse.

According to a 2009 survey by ACPO in England and Wales, the grant of a firearm or shotgun certificate involves six or seven hours of police time. That may be overstated, but if a licence for an air gun involved only three hours of police time, more than 1.5 million additional hours would be required in the first year. Perhaps exemptions would be made for existing firearm and shotgun certificate holders, or perhaps further savings could be made by way of various exemptions; but even then the burden on the police would be more than 1 million man-hours. This has to be paid for.

It may be argued that the cost of all this could be recovered from the air gun owner, but Treasury guidelines demand that fees reflect only the actual cost of issuing the licence or certificate in question, and these recover only a small part of the cost to the firearms licensing department. They do not include enforcement measures or costs not directly linked to the grant of the individual licence.

Police in other parts of the United Kingdom would be involved in costs—probably large costs—related to the enforcement of any new laws in Scotland. An air gun sent by a dealer in England to a customer in Scotland might well involve a contravention of Scottish but not English law. However, inquiries would have to be made by English police about the actions of the English dealer.

Sporting shooting is an important factor in the economics of Scotland. According to VisitScotland, those living outside Scotland who visit Scotland for sporting shooting generate some £50 million per year for the Scottish economy. It is not unusual for the visitor to take an air gun with him for use against pests or in recreation. Such people will either continue to do so in ignorance of a new law, or they may be deterred from visiting at all if bureaucratic controls are in place. Major international target-shooting events are staged in various parts of the United Kingdom. Large numbers of competitors travel from Scotland to compete in events at world-famous venues such as Bisley, while the major Scottish meetings attract members from England and further afield. Shooters are likely to be inhibited from travelling to such events by bureaucratic controls, and many will simply stay away. Organisations representing field and target shooters on both sides of the border should be consulted.

Finally, while Clause 11 relates only to the potential for laws to license or otherwise restrict air guns in Scotland, such laws will impact on the rest of the United Kingdom, and it is right that proper consultation with those inside and outside Scotland should be required, so that those who may be affected at least have a statutory right to have their views heard.

12:15

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I thank the noble Lord, Lord Browne, and my noble friend Lord Shrewsbury for giving us an opportunity to look at this part of the Bill that specifically relates to devolution in respect of air weapons.

The amendment of the noble Lord, Lord Browne, seeks to remove the exception the Government have made in the Scotland Bill to the devolution of powers to license air weapons. Clause 11 provides that the Secretary of State retains the powers to make rules under Section 53 of the Firearms Act 1968 to specify weapons as “specially dangerous” and so require a firearms certificate, and also to make orders under Section 1(4) of the Firearms (Amendment) Act 1988 to prohibit specially dangerous weapons.

The contributions of the noble Lord and my noble friend indicated that this is a complex issue and I take the general point about the legislation being in different Acts. I therefore fully recognise why the noble Lord wishes to explore fully why the Government are not devolving the powers that are part of the exception in Clause 11. This was discussed in another place. In many respects, the issue turns on the way in which the Firearms Acts are drafted and the need to ensure that all specially dangerous weapons are dealt with on a consistent basis across the United Kingdom. Like the noble Lord, we should perhaps go back to the report of the Calman commission, which recommended that only air weapons should be devolved—although we know that there are those who would wish devolution to be extended to all firearms. I know that other members of the Calman commission are present. I do not remember us having any particular discussion of subcategories of air weapons that might be described as specially dangerous.

The Government believe that it would be confusing and potentially damaging to create a situation in which much of the body of firearms legislation in Scotland could differ substantially from that in England and Wales. Calman, too, said that there could be,

“serious disadvantages in having different, uncoordinated policies”,

and therefore does not recommend devolving generally the subject of the Firearms Acts. That being so, we need to ensure that there is a common framework for the most lethal weapons across Great Britain, and this will include what are known as Section 1 firearms, such as hunting rifles, which require a firearms certificate issued by the local police.

In accepting the Calman recommendation that air weapons should be devolved, we looked to do that by adding an exception to Section B4 in Schedule 5 to the Scotland Act 1998, which currently reserves firearms by reference to the subject matter of the Firearms Acts 1968 to 1997. Those Acts cover regulation of the manufacture, possession, handling, purchase or acquisition, sale, distribution and transfer of firearms. They distinguish between different types of firearms in certain respects and make different provision for different types, including air weapons. Air weapons are defined in the current legislation in accordance with Section 1(3)(b) of the Firearms Act 1968. This refers to an air rifle, air gun or air pistol which has not been declared to be specially dangerous by rules made by the Secretary of State under Section 53 of the Act, and is not a prohibited weapon.

I claim no expertise or experience whatever in firearms, but I understand that currently, air pistols generating a muzzle energy in excess of six foot pounds and other air weapons generating a muzzle energy in excess of 12 foot pounds have been declared to be specially dangerous for these purposes. This means in practice that an air weapon which has been declared as specially dangerous becomes subject to the requirement to hold and abide by a firearms certificate. It therefore ceases in practical terms to be treated as an air weapon under Section 1(3)(b) of the Firearms Act 1968. Control of these types of weapon need to remain reserved, which is why the power to make rules under Section 53 of the 1968 Act will remain those of the Secretary of State.

I reassure noble Lords that we are not looking to restrict the way in which the Scottish Parliament exercises its legislative competence in respect of air weapons. I acknowledge that there is a drafting complexity in Clause 11, but in practice the Scottish Parliament will be able to regulate air weapons in the way in which it chooses.

[Lord Forsyth of Drumlean]

My noble and learned friend simply stated that the regulation of those more powerful weapons needed to be reserved. Can he explain why?

[Lord Wallace of Tankerness]

Because that takes them into a category for which licensing is required. We took the view, as did Calman, that there are categories of firearms which should not be devolved, those which might be described as more powerful, more dangerous, and that the particular air weapons which are the subject of our debate fall into that category and have more in common with firearms covered by other parts of the Firearms Acts than they do with other air weapons. It is because of their potential lethality. That is why there seemed to be a distinction between them and air weapons which are the subject of devolution.

[Lord Forsyth of Drumlean]

I am genuinely trying to understand this. If the Scottish Parliament was to have power to regulate those “less dangerous” air weapons, how would it do that without having a licensing scheme? If my noble and learned friend’s argument is that they are required to be part of a licensing scheme, I do not understand the logic of it. If the Government’s view is that the Scottish Parliament ought to have this responsibility, is the Minister saying that it can only have responsibility for weapons if they are not very dangerous? It seems to be a little illogical to me.

[Lord Wallace of Tankerness]

With respect, it is not illogical at all. A point I will raise when I respond to my noble friend Lord Shrewsbury is that this is devolution of a power. How the Scottish Parliament chooses to exercise that power, if at all, is a matter for the Scottish Parliament. I am trying to find the relevant part of the Calman commission report, which dealt not with the point about especially dangerous air weapons but with the more general point about firearms.

The commission indicated that the UK Government of the day had,

“argued that any ban on a firearm which it is currently legal to possess would need to be underpinned by a compensation scheme. It argues that where such firearms are currently unregulated”—

which is the specific case for air guns—

“it would be difficult to prevent them being legally and cheaply acquired in one jurisdiction and passed off for compensation in another which had introduced a ban. This is not an argument against devolution itself as much as it is a caution to a devolved administration making difficult policy decisions it believes to be in the best interests of its citizens. Whilst there would undoubtedly be practical considerations and potential difficulties in any divergence of approach to firearms control they do not preclude the development of robust mechanisms for managing cross-border problems, information sharing and good communications”.

The Calman commission did not think that the case had been made for the devolution of firearms generally. The point is that especially dangerous air weapons are, in effect, firearms, licensed across Britain on the basis of what I think is widely recognised as a strict, world-leading regime. The Government do not wish to undermine that strict framework for the most dangerous weapons. Air guns that are the subject of devolution in this clause are not subject, at the moment, to what might be described as that strict licensing regime. That distinction is made, which is why the exception to the devolution of air weapons is being made in this clause.

[Lord Forsyth of Drumlean]

I am grateful to my noble friend. Perhaps it might be better if I made a speech rather than asked questions, but I am struggling to understand the logic here. The Minister has read from the report by the Calman commission, which was chaired by Ken Calman, for whom I have considerable respect; he was my Chief Medical Officer for Scotland. I am not sure that he is actually an expert on firearms regulation. The Minister’s quotation from the report seems to be saying that this would be very difficult to administer and very expensive. That is not an argument against giving Scotland the power, because it might not use it. However, not giving it the power creates the kind of uncertainty that my noble friend Lord Shrewsbury talked about.

[Lord Wallace of Tankerness]

The noble Lord, Lord Browne, quoted other parts of the report, which said that, notwithstanding that, there would be cases where devolution would be appropriate. Indeed, the commission identified particularly Scottish circumstances as to why air weapons should be devolved. That was the commission’s recommendation, which not only the present Government accept and are trying to implement through the Bill; the previous Government also agreed to the principle of devolving the power to regulate air weapons to the Scottish Parliament in the White Paper that they published in response to the Calman commission.

I am trying to make the point that some categories of air weapons are currently subject to a licensing regime because of their power. We still seek to maintain that reservation for that category, subject to the Secretary of State’s powers under Section 53 of the Firearms Act.

[Lord Browne of Ladyton]

I thank the noble and learned Lord for giving way. Indeed, I am grateful to the noble Lord, Lord Forsyth, who, in one simple question, encapsulated what it probably took me seven minutes to say. The purpose of this devolution is to respond to an obvious desire in Scotland for the greater regulation of air weapons generally. Regulating them more means licensing, at the very minimum. It is inconceivable that if the Scottish Parliament is given this power, it will not make all air weapons subject to a licensing regime. The distinction, therefore, between an air weapon of lesser capacity, force or power not being regulated and one of more power being regulated disappears. There will be two licensing regimes for air weapons when, in my submission, there should be one. If there is to be a distinction between, or a subdivision in, the licensing regimes for air weapons—one at the UK level and one at the Scottish level—will that not just add to the confusion rather than making matters simpler?

[Lord Wallace of Tankerness]

I see the point that the noble Lord is making but I do not necessarily follow him down that route. For a start, this is the devolution of a power. It is a prescription as to how that power might or should be used and, even if it is a licensing scheme, it may well be very different. We seem to be getting weapons that are not subject to the kind of strict licensing regime that we have at the moment. Therefore, I think that a distinction can be made, which we wish to keep, for weapons of greater power so that we can maintain consistency across the United Kingdom. As I have already quoted from Calman—it might even be the passage that the noble Lord read out—there seem to be advantages in maintaining that consistency.

[The Earl of Shrewsbury]

Although my noble friend says that this is enabling legislation which the Scottish Parliament may or may not put in place, does he not agree that the Scottish Parliament is already doing it when the Act has not yet been passed? It is already investigating my people from the Gun Trade Association who have been up there to give evidence to it.

[Lord Wallace of Tankerness]

My noble friend made a very powerful speech. However, we cannot make presumptions in that regard; nor can we presume what the shape of any licensing regime would be. The points that his colleagues in the gun trade are making may well help to determine the shape of that legislation.

Perhaps I may turn to my noble friend’s amendment. He has set out very clearly what he sees as the consequences of imposing restrictions on air guns in Scotland, if indeed the Scottish Parliament chooses to go down that route. He has highlighted how any changes will have implications for the trade and for the police not just with regard to licences but with regard to the financial burden that he has outlined, and he has suggested that they are consulted by the Scottish Government before any new legislation is introduced.

[The Duke of Montrose]

Perhaps my noble and learned friend could clarify one of the points introduced by the noble Lord, Lord Browne of Ladyton. The power in the Bill would presumably prevent the Scottish Parliament making any legislation on powerful weapons—it would be able to bring in regulation only on the non-powerful weapons—whereas what the noble Lord, Lord Browne, said might have been interpreted as meaning that it would try to regulate both.

[Lord Wallace of Tankerness]

I am not sure that that is the case. However, I think my noble friend is right that the power in the Bill does not relate to more powerful weapons. Especially dangerous air weapons are already licensed. We are providing Scottish Ministers with a power to put in place a licensing regime, as the noble Lord suggested, for air weapons, which are not regulated under the current GB framework. A very simple distinction has been made between weapons that are currently regulated and those that are not, and the devolution of power relates to those that are currently regulated.

[Lord Forsyth of Drumlean]

I am sorry; it is very bad to interrupt my noble and learned friend so often but I just do not understand this. I can understand the concept—the wish—to devolve to the Scottish Parliament the power to regulate firearms, and the wish to give to the Scottish Parliament the power to regulate air weapons. However, I do not understand the concept that the Scottish Parliament should be able to deal with only some air weapons and not others. That will create monumental confusion and we could end up with a system where the less dangerous weapons are subject to more control than the most dangerous weapons, which would be absolutely absurd. How would we avoid that?

[Lord Wallace of Tankerness]

I think that my noble friend is seeing difficulties where they do not really exist. The clear view was taken by the Calman commission, by the previous Labour Administration and by the present Government that firearms as a whole should not be devolved. We are trying to explain—and I apologise to your Lordships if I am not doing so sufficiently well—that the weapons that under Clause 11 are not being devolved fall more closely into the category of firearms than unregulated air weapons, which are being devolved. Therefore, we are maintaining a consistency with regard to weapons that are currently the subject of a licensing regime vis-à-vis weapons that are not currently the subject of a strict licensing regime.

My noble friend says that that could lead to a stricter licensing regime. I have to concede that that is technically possible if the Scottish Parliament sees fit to do that, although I would have thought that some of the compelling arguments made by my noble friend Lord Shrewsbury may well mean that a bit of common sense will prevail when it shapes these powers. That is the essence of devolution. If a power relating to air weapons is devolved, as long as it is consistent within the confines of the Scotland Act it is a question of how that power is exercised.

12:30

[Viscount Slim]

My Lords, in a past life, I, with others, was able to experiment at some length with the possible advantage of an air gun for military use. On the market at the moment there are air guns that are lethal and really dangerous. There are air guns that some people say are less dangerous but, in the wrong hands, all air guns kill or maim to such an extent that you might perhaps wish you were dead. Has not the noble Earl, Lord Shrewsbury, put his finger on it? There seems to be a muddle. If you let the civil servants of both nations loose, you will have a much bigger muddle; you will have a catastrophe. Surely the noble Earl is right that before ruling on this, the proper government officials of both nations—I say nations now because everyone wants to be different and separate—should work out what is a dangerous weapon. The noble Earl is quite right that senior police officers from both countries and government officials should get together and then perhaps we shall make a sensible Bill.

[Lord Wallace of Tankerness]

My Lords, the noble Viscount makes a wider case about a general review of firearms at the UK level. The question of air weapons goes considerably further than the scope of this Bill, although I am sure the important points that he makes will be noted. This also covers the point made by the noble Lord. My noble friend pointed out that a licensing scheme would impose significant and costly burdens on firearms licensing departments and he expressed concern that shooters might be deterred from visiting Scotland by what might become overly bureaucratic controls. Taking these factors together, he proposes a statutory right for those affected by any changes to have their views heard.

As I have said in the context of the debate of what is and is not devolved, it is not for this Government to gainsay any of the reasons he has adduced in relation to the licensing of air weapons. Indeed, I recognise that sports shooting is a valuable contributor to the Scottish economy and that any change to firearms legislation is rarely straightforward.

That said, the nature of devolution is that a power is devolved and it is then up to the devolved body to determine how it wishes to exercise that power, as always, within the constraints of the law. This amendment, moved by my noble friend, would fetter the Scottish Government’s and Scottish Parliament’s discretion as to how they might go about the task of regulating air weapons. That was not the recommendation from the Calman commission.

However, while this is not a matter for the statute, I would say to my noble friend and to the Committee that one should fully expect the Scottish Government to consult appropriately before it proposes any new legislation on this matter in the same way that it would normally do with other Bills submitted to the Scottish Parliament. Indeed, it is worth reminding the Committee that the standing orders of the Scottish Parliament, at rule 9.3.3, require a policy memorandum to accompany any executive Bill setting out,

“the consultation, if any, which was undertaken on those objectives and the ways of meeting them or on the detail of the Bill and a summary of the outcome of that consultation”.

Certainly the categories of consultation that have been suggested by my noble friend would appear to be eminently sensible. It is also important to point out that over a range of issues there is regular contact between the Scottish Government and the UK Government with regard to proposals that are coming forward for legislation in the Scottish Parliament. The UK Government will, of course, continue to work with the Scottish Government once the power is devolved to ensure that all who own air weapons and use them legitimately are clear on what the legal requirements would be north and south of the border and will indeed flag up to interested bodies that are not in Scotland that there may be some relevance here, not least ACPO, which may wish to make representations.

In addition, each Bill introduced into the Scottish Parliament must, in line with rule 9.3.2 of the standing orders, be accompanied by a financial memorandum which,

“shall set out the best estimates of the administrative, compliance and other costs to which the provisions of the Bill would give rise, best estimates of the timescales over which such costs would be expected to arise, and an indication of the margins of uncertainty in such estimates. The Financial Memorandum must distinguish separately such costs as would fall upon … (a) the Scottish Administration; (b) local authorities; and (c) other bodies, individuals and businesses”.

It certainly seems to me, from what my noble friend said, that, in terms of the financial costs, we can anticipate some quite comprehensive evidence being presented under these headings.

Ultimately, the Scottish Parliament will be the final arbiter but where there are issues to be resolved it would be hoped that the Scottish Government will wish to listen to the arguments. It would appear that already there is engagement with some of the interest groups and stakeholders in this area. My understanding is that they have already set up a consultative group to advise on proposals to introduce a system to license air weapons in Scotland and I assume it will continue to meet if Parliament agrees that this clause should be enacted.

I hope I have indicated that there is a distinction between what is being devolved and the categories of air guns which are not being devolved and that in fact there are adequate procedures in the standing orders of the Scottish Parliament, both for extensive consultation and for the financial burdens to be properly aired and presented to the Parliament. On that basis, I invite the noble Lord to withdraw the amendment.

[The Earl of Caithness]

My Lords, perhaps my noble and learned friend can help me on the use of air weapons. Would it be possible for there to be two sets of regulations north and south of the border? In those regulations, would it be possible to prohibit the use of a weapon from England, say, in Scotland where it does not have to be licensed, whereas in England it has to be licensed? Would it be possible for the Scottish Government, within regulations, to make an order that that weapon could not be brought into Scotland and used?

[Lord Wallace of Tankerness]

My Lords, I seem to recall going over some details during the Calman commission. It must happen already when shooting parties come from other parts of the European Union. The trouble is that I cannot remember what answer the Calman commission got. I had better not mislead my noble friend and I shall write to him giving him chapter and verse.

[Lord Forsyth of Drumlean]

My Lords, I am still not persuaded by my noble and learned friend. Perhaps I am getting old and cynical. He served on the Calman commission and it is interesting that none of the other members of the Calman commission has felt able to contribute to this interesting debate and explain how they came to this conclusion.

One remembers the genesis of the Calman commission. It was an initiative led by the Labour Party, which the other unionist parties joined in with in order to prevent the case for independence and the nationalists being able to gain control of the Scottish Parliament. In that sense, it fell at the first fence. The idea was to look at what further powers beyond this Scotland Act could be devolved to Scotland. If I may address my noble and learned friend as a member of the Calman commission, one has the sense that he was scrambling around trying to think of things which could be devolved to the Scottish Parliament.

Something that worried me about my noble and learned friend's response to my noble friend Lord Shrewsbury was that he kept relying on what the Calman commission recommended. The commission made recommendations to the Government. It was the responsibility of the Government to consider them, decide what made sense and put forward their proposals. We are not talking here about the Calman commission's proposals; this is a government proposal. I respectfully suggest to my noble and learned friend that as a Minister in the Government he should be able to defend it.

I cannot for the life of me understand why it would be desirable to have another licensing system for air guns in parallel with the one that exists south of the border. I can see the argument. The noble Lord, Lord Browne, rightly pointed to some horrible and tragic cases that occurred in Scotland. However, there is nothing unique about Scotland that means that these cases could not also happen in England. The corollary is that the Government should look at the licensing of air weapons throughout the United Kingdom. If one is going to pass laws—as my noble friend Lord Shrewsbury pointed out—one ought to be conscious of how one is going to enforce them. If we get to a position where air weapons are either illegal in Scotland or are subject to a different regulatory regime from that which exists in England, how will that be enforced at the border? Will we have guys on the A74 checking whether the precise nature of a weapon meets the regulations that have been passed by the Scottish Parliament?

Faced with these challenges, my noble and learned friend resorted to the argument that, “We are only devolving the power. The noble Lord, Lord Forsyth, is putting forward arguments about what might occur if the Parliament chose to exercise that power”. However, this Parliament should not create the legislative possibility of creating great confusion and difficulty in the administration of firearms legislation. The clause would be better if it gave the Scottish Parliament the power to deal with all weapons. If my noble and learned friend's argument is that some of these weapons are firearms, it becomes very difficult to see as one goes down this road how one would defend not giving the Scottish Parliament complete authority over all firearms, in which case we would have different regimes on different sides of the border—and that would make controlling firearms almost impossible. We seem to be creating a difficulty.

My noble and learned friend accused me of seeing problems where they did not exist. I do not see why the current regime would not be capable of dealing with the concern about air weapons, and I can see how this clause will create great confusion and difficulty. As my noble friend Lord Shrewsbury pointed out, air weapons do not have serial numbers. It is asking a lot of a policeman to look at an air weapon and decide which category it is in. This looks like the product of a political fix. There was great public concern about air weapons; it was a big issue. The Calman commission said, “We must do something about air weapons”. It looked at the practicalities and found that they were very difficult, so we ended up with a camel designed by a committee.

I urge my noble and learned friend to look at this again. It is a very serious matter and I do not believe that the Bill addresses the practicalities involved. I support the noble Earl’s very modest amendment, which does not seek to attack—as I have just done—the basis of the legislation in the clause.

12:45

[Lord Browne of Ladyton]

My Lords, I am grateful to all noble Lords who took part in what developed into a debate that was much more interesting than my introduction. From my experience in your Lordships' House, that did not surprise me. I am grateful to the noble Lord, Lord Forsyth, who in one of his early interventions brought a degree of clarity that I had not managed to achieve to a point I had tried to make. I disagreed with some of his other interventions, but we will have an opportunity to debate the genesis and value of Calman at a later stage and in proper circumstances. However, in his most recent intervention he may well have pointed out where the problem lies in relation to a coherent approach to this. It is a matter of regret that we do not have a Home Office Minister at the Dispatch Box to respond to the debate.

The story that lies behind this is that repeated incidents in Scotland of the nature of the tragic death that I referred to generated a desire to regulate air weapons. The noble Viscount, Lord Slim, pointed out very wisely from his informed background that air weapons are all potentially lethal. There was a discussion between those who represented the Scots, including Members of Parliament and the Home Office, which moved toward the possibility of regulation on a UK level, but then stopped. The frustration generated by the Home Office's unwillingness to proceed exacerbated the discontent in Scotland. An indication that something would be done was snatched away. The key difference is between weapons that are regulated and those that are not, because those that are not have the potential to be lethal and have been proven to be lethal in a number of cases. This has caused the Scottish people to say, “We want our Parliament to have the power to do something about unregulated weapons and to regulate them”. That is the set of circumstances to which Calman responded. Far from having to look around for powers to devolve, the significant cross-party lobby for the regulation of air weapons in Scotland was waiting for the opportunity of Calman or something similar to articulate its arguments.

[Lord Forsyth of Drumlean]

I apologise if I gave the impression that the regulation of air weapons was not an issue. When I said that they were looking around for powers, I meant that they were looking around for powers to devolve. There certainly was an issue. Another example, which we will come to later, is giving the Scottish Parliament the power to decide speed limits. We have ended up with a Bill that gives the Scottish Parliament the power to regulate the speed of motor cars but not of HGV lorries. That is absurd. The distinction between different categories of air weapons is a similar example.

[Lord Browne of Ladyton]

I am grateful to the noble Lord for his intervention. I understood the rhetorical point that he made. In relation to the issue that we are debating, there is a very strong desire in Scotland to have air weapons regulated. The Scottish people would have been happy if there had been a prospect of a system of regulation that would have been applied to the whole of the United Kingdom. In the absence of that prospect, the Scottish people say—and I agree with them—that if the power can be given to the Scottish Parliament, this should at least have the opportunity to regulate air weapons and to deal in some way with the obvious menace of their misuse. I am grateful to the noble Lord for allowing me to make that point in this context. Otherwise, what may appear to some to be a trivial piece of devolution, or to others to be something that is delivering unnecessary complications, will not be seen in its proper context.

I am grateful to the noble and learned Lord for the care he took in responding to my probing amendment on these matters. Characteristically, he engaged with the issue and articulated what I thought was the Government's argument for this exception to the devolution of responsibility for all air weapons. He will appreciate that I need to study his response, because I am not familiar with this area of law and I know how complicated it is. I incline to the view that if the distinction is caused by the existing licensing regime for some weapons—when I anticipate that there will be a licensing regime for all weapons—I may not be satisfied and may have to return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Amendments 19 and 20 not moved.

Clause 11 agreed.

Clause 12 : Insolvency

Debate on whether Clause 12 should stand part of the Bill.

[Lord Browne of Ladyton]

My Lords, I approach the Dispatch Box to probe again the distinctions between what Calman recommended and what the Government have chosen to do. On this occasion, the Government have gone beyond the Calman recommendations.

Clause 12 has the backing of respected bodies, such as the Law Society of Scotland and the Institute of Chartered Accountants of Scotland. During the many evidence sessions throughout the Calman process, it became clear that the insolvency profession in Scotland sought the harmonisation of insolvency law on both sides of the border. However, Clause 12 goes beyond the original Calman recommendations. Your Lordships will recall that Calman recommended that the UK Insolvency Service be responsible for laying down the rules to be applied by insolvency practitioners on both sides of the border.

Calman went on to recommend that this could be achieved by UK legislation to which the Scottish Parliament would consent by a legislative consent Motion under the Sewel convention—I think those are the exact words of the recommendation. I understand that technically—a word I do not like to use—this is exactly what the Government have done in the sense that this Bill is UK legislation that has to be consented to by a legislative consent Motion by the Scottish Parliament. However, that appears to be a pedantic argument, and I do not expect that the noble and learned Lord will resort to it.

The clause does not appear to be in keeping with the spirit of the original Calman recommendations. Does the Minister believe that this is the correct implementation of Calman, or does he agree that it goes beyond Calman? It goes beyond the reservation of the power for the Insolvency Service to lay down the rules to be applied by insolvency practitioners on both sides of the border and reserves the whole body of law on corporate insolvency. If the Minister agrees that this goes beyond the Calman recommendation, will he outline the reasons for so doing?

The report of the Scotland Bill Committee of the Scottish Parliament, which was overwhelmingly approved by the earlier legislative consent Motion of the Scottish Parliament—as I have said before, it was supported by Alex Salmond—approved Clause 12, subject to provisions being drafted that will secure capacity for devolved legislation to effect the winding-up of registered social landlords. Does the Minister believe that this condition has been satisfactorily met? If so, can he explain why that is the case; and, if not, can he justify to this House why he has decided to pursue an alternative path to that sought by the Scotland Bill Committee?

During the debate on this clause in the other place, the Scottish nationalists asserted that there were concerns about the process of amending existing provisions on winding up registered social landlords. One concern is that future amendments, they say, would be easier to come by if this policy area were devolved rather than reserved. As is often the case with Scottish nationalists, this was asserted as though it were fact, and, as is also often the case with them, the assertion was not backed up by any evidence to suggest that that would be the case. No examples were given to support this theory, for that is all it is. It appears simply to be a continuation of their argument that everything would be better if it were devolved to the Scottish Parliament. The Minister in the other place, the Parliamentary Under-Secretary of State for Scotland, argued that this is not a cause for real concern, and I support that position.

However, the Minister went on to say that there was a problem and that there were ongoing discussions between the Insolvency Service and the Scottish Federation of Housing Associations to discuss the latter’s specific concerns about this clause. Perhaps the Minister will update the House on the progress, or better still the outcome, of those discussions to satisfy us that the issue has been resolved. I am certainly not the only Member of this House to have received a briefing note from the Scottish Federation of Housing Associations that articulated continuing concern about the impact of this clause. I would not like to think that this is a sign that discussions were not successful, but if they were not successful, the Minister should explain to the Committee what is going on.

There is an identified issue here about circumstances that may arise in the winding-up or potential insolvency of a particular vehicle for delivering important housing in Scotland or a housing association. It is recognised that this needs to be resolved by discussion or perhaps by a change in regulation. Before we agree to this clause standing part of the Bill as drafted, your Lordships' House is entitled to know whether that issue has been addressed and satisfactorily resolved, or at least to have the confidence that a resolution is on its way.

[Lord Wallace of Tankerness]

I thank the noble Lord, Lord Browne, for giving us an opportunity to look at this clause. Schedule 2 is also relevant to insolvency. As he indicated, there was a recommendation from the Calman commission that the UK Insolvency Service should be made responsible for laying down rules to be applied by insolvency practitioners on both sides of the border. The noble Lord asked a very pertinent question about why the Bill goes beyond the specific terms of the Calman commission’s recommendation.

The commission was persuaded by evidence from stakeholders, such as the Law Society of Scotland and the Institute of Chartered Accountants of Scotland, that a consistent approach to winding up would bring significant benefits to creditors, companies, insolvency practitioners and others dealing with insolvent companies in both England and Wales and Scotland. The Institute of Chartered Accountants of Scotland said:

“We do not see any advantage in encouraging divergence of practice when businesses across the UK operate in a similar environment”,

and,

“This will promote a more stable environment for corporate recovery and turnaround and be more comprehensible for creditors and potential investors”

Certainly in the present environment, that is an important consideration. Many winding-ups involve groups of companies that operate on both sides of the border. We believe that it will be more efficient in time and money if the same winding-up rules, other than where Scottish common law requires something else, are applied to each insolvent company in the group.

These amendments will make reorganisations more efficient and increase returns to creditors and shareholders. Group reorganisations may involve subsidiaries being wound up, and a common approach to winding-up rules should help to reduce the cost and complexity of group restructurings whose constituent companies operate both in Scotland and in England and Wales.

Indeed, in its evidence to the Calman commission, the Institute of Chartered Accountants of Scotland, which regulates most of the insolvency office-holders working in Scotland, highlighted the benefit of consistent rules in promoting a more stable environment for corporate recovery and turnaround. Further, the Law Society of Scotland reported in its evidence to the commission that, because of the increased number of insolvencies of groups of companies, practitioners have for a number of years been having difficulties where parts of the group are subject to the rules for England and Wales and parts to the Scottish rules. The Calman commission was persuaded that there should be a consistent approach to winding-up rules, and the UK Government agree with that position.

The commission recognised that its first option for implementing its recommendation that the UK Insolvency Service, with appropriate input from the relevant departments of the Scottish Government, should be made responsible for laying down insolvency rules for England and Wales and Scotland might not be achievable for technical reasons. It therefore acknowledged that the devolution settlement might need to be amended to secure the desired effect.

13:05

Perhaps I may explain to the noble Lord and the Committee why the Bill is somewhat different from the recommendation. The Insolvency Service has no powers to make rules. It is an executive agency of the Department for Business Innovation and Skills. Its officials advise Ministers. However, even if the commission had recommended that UK Ministers, in place of the Insolvency Service, be responsible for laying down rules in England and Wales and in Scotland, the first option would not be viable. With such an approach, legislative and executive competence in this area would remain with the Scottish Parliament and Scottish Ministers under the 1998 Act, who could thus overwrite rules made by the UK Parliament. That could lead to continued divergence and possibly more confusion, which is just what the commission was seeking to avoid. That is why we are adopting the second of the commission’s options—amending the 1998 Act—and re-reserving the winding-up of business associations in its entirety.

The noble Lord also raised the issue of housing associations. I am well aware that there have been concerns about the effect of this clause on the Housing (Scotland) Act 2010 and on registered social landlords caused by the removal of the specific exception to the insolvency reservation relating to such bodies. This removal is a logical consequence of re-reserving legislative competence for the winding-up of business associations generally to ensure the coherence of corporate insolvency legislation.

The provisions in this Bill relating to insolvency should therefore not be read as implying that we consider that the housing regulation regime should be changed. That is quite rightly a matter for the Scottish Government and the Scottish Parliament. We want to ensure that provisions of the Housing (Scotland) Act 2010 that rely on the exceptions are not undermined by the change to legislative competence in this area. This Bill already includes a power to make savings provisions, which could be used for the avoidance of doubt if any doubt arises.

As for the future, we appreciate that there may be particular types of business association for which there is good justification for additional rules, and we think that those rules need to be considered and put in place by the UK Government to ensure coherence with the overall insolvency regime. I assure the Committee that we will be receptive to requests from the Scottish Government in relation to this sort of issue, as we always are when the Scottish Government need changes to be made to a reserved area in order to give full effect to their policy. Should it be appropriate, we would consider bringing forward Section 104 orders or UK legislation where necessary to bring this about.

Both the Parliamentary Under-Secretary of State in the Scotland Office and I had meetings separately last year with the Scottish Federation of Housing Associations to hear and to try to ensure that we fully understood their concerns and to provide reassurances that we will preserve the effect of the Housing (Scotland) Act 2010, which will in turn protect the independence of the housing regulator. I am not sure of the date of the written representations to which the noble Lord referred from the Scottish Federation of Housing Associations. However, my officials have also met representatives from the SFHA, the Scottish housing regulator and the Scottish Government’s housing directorate to work through those reassurances in detail. We certainly believe that we had addressed the concerns of the Scottish Federation of Housing Associations. Clearly, if these concerns are still current, I would wish to have an opportunity to see them again because we thought that we had addressed them.

Schedule 2 is introduced by Clause 12. We believe that having just one Parliament responsible for the rules relating to winding up in Scotland will aid flexibility and responsiveness, and will address problems that have been reported by insolvency office-holders when the law changed in one jurisdiction but not the other. In fact, we are taking the opportunity provided by the Bill to deliver for Scotland the benefits of modernisation changes, some of which have been in place in England and Wales, and for the existing reserved insolvency procedures in Scotland, for nearly three years now.

These changes lift administrative burdens by allowing insolvency office-holders to make full use of advances in information technology made over the past quarter of a century to communicate with creditors, thus reducing the costs for the benefit of those creditors. The changes were made to reserved insolvency procedures in Scotland in 2009 and 2010 by a combination of legislative reform orders and subordinate legislation, but because of the present division of responsibility for rules between the UK and Scottish Parliaments the changes could not at that time be extended to windings-up in Scotland.

That is an example of some of the unnecessary and confusing divergences that have developed between the two jurisdictions and that were brought to the attention of the Calman commission, which prompted the recommendations, the spirit of which the Government accept and are seeking to address in this legislation. We hope that as a result of this legislation we are ensuring that creditors of windings-up in Scotland are able to enjoy similar benefits to those provided to creditors of windings-up in England and Wales.

This is sensible evidence-based legislation, and I therefore commend the clause and, when we come to it, Schedule 2 to the Committee and propose that they stand part of the Bill.

[Lord Browne of Ladyton]

My Lords, I am very grateful to the noble and learned Lord for his comprehensive response. I had hoped that he would lay out clearly why the Government have chosen to go beyond the Calman recommendations, which he has done, and I found his arguments persuasive.

Clause 12 agreed.

Clause 13 : Regulation of the health professions

Amendment 21

Moved by

[Lord Wallace of Tankerness]

21: Clause 13, page 9, line 7, at end insert—
“The reference to any profession regulated by the Regulation of Care (Scotland) Act 2001 includes—
(a) any profession regulated by that Act by virtue of any subordinate legislation (whenever made) which is or could be made under the Act, and(b) any profession regulated by any Act of the Scottish Parliament so far as it re-enacts that Act (including any profession regulated by virtue of subordinate legislation under any such Act);and the references to that Act are to that Act as it has effect on the date on which this paragraph comes into force.””

[Lord Wallace of Tankerness]

My Lords, this amendment is minor and technical in nature and has been laid following work undertaken with the Scottish Government to clarify the scope of Clause 13. The United Kingdom’s intended policy remains unchanged; we have always said that while we intend to re-reserve the regulation of health professions to Westminster, the regulation of social care professions should remain a devolved matter within the legislative competence of the Scottish Parliament. Likewise, the Scottish Government’s position on Clause 13 remains unchanged. They remain opposed in principle to the re-reservation of the regulation of health professions.

To give some background, health profession regulation is currently reserved by reference to specific Acts of Parliament, all of which were obviously in place when the 1998 legislation went through. Other health professions have been subject to regulation under subsequent statutes. Under the architecture of the 1998 Act they would not have been caught up in this. A considerable number of bodies made representations to the Calman commission that this was an unsatisfactory position, which is what we sought to address.

Despite the differing policy positions of the United Kingdom and Scottish Governments on the clause generally, this amendment clarifies the intent behind the clause and is an example of where we have listened to the technical concerns, which the Scottish Government have raised, and have sought to act on them. The Scottish Government’s concern was that, as originally drafted, Clause 13 might have an unintended consequence for the social care professions that might in the future become regulated by the Scottish Parliament under the Regulation of Care (Scotland) Act 2001 or a successor Act. The concern was that the regulation of these new social care professions would fall within the scope of the new re-reservation, which is not the United Kingdom Government’s intention.

This minor and technical amendment makes it explicit that regulation of the social care professions is, and will remain, a matter that is devolved to Scotland. I hope that that clarifies this amendment. I beg to move.

[Lord Boyd of Duncansby]

My Lords, we welcome the clarification that this amendment gives to this clause. It was never the Calman commission’s intention that the regulation of residential care workers should be reserved as opposed to health professionals. Perhaps I may add to the background. The Calman commission received evidence from the royal colleges, which are concerned at the possible fragmentation of standards as a result of the Scottish Parliament on the one hand and the UK Parliament on the other having responsibility for the regulation of health professionals. Common standards for health professionals are of evident benefit to the UK as a whole, and the Government’s implementation of this recommendation is to be welcomed.

On a final point, the re-reservation of powers to the UK Parliament in this case is a signal that devolution is about finding the right balance between the powers that sit with the UK Parliament and those that sit properly with the Scottish Parliament. It is important that we get a system that works well not only for the people of Scotland but for the people of the UK as a whole.

Amendment 21 agreed.

Clause 13, as amended, agreed.

Debate on whether Clause 14 should stand part of the Bill.

[The Duke of Montrose]

My Lords, in opening this debate on what is presently something of a probing Motion, I want just to draw the attention of the Committee to the fact that this and the two previous amendments have broached the subject of Westminster reserving powers that were originally part of the general devolution under the Scotland Act. This is certainly an area to which the original convention on legislative consent Motions applies. Not unexpectedly, this has caused a few ripples at Holyrood because it was beginning to look like there was something of a precedent that devolution could go only one way, and that was for it to be increased. The power being proposed is an implicit rather than an explicit power that is to remain with Westminster. There may of course be other powers in the 1998 Act that have yet to be explored, but in these proposals it is now obvious to everyone that new reservations are possible. At the same time, we need to be sure that what is being proposed is totally necessary. I wish to be sure that the Government have given enough thought to its implications.

The question of Antarctica is particularly interesting because one Scotland Bill committee of the Scottish Parliament felt that it could agree to this being included in the Bill, but the next committee came out and said that it would not agree. We still await the final outcome. Another reason for visiting Antarctica in our discussions is that 15 days ago it was the 100th anniversary of the arrival of a certain Captain Scott at the South Pole, and we want to pay tribute to him and to his colleagues on their efforts and their role in the influence that we have in that part of the world.

On a slightly lighter note, I should declare my interest in Antarctica, although it is not pecuniary in any way. As the chief of Clan Graham, I follow eagerly the influence of Grahams. We have Graham Streets, Graham’s Dyke and Grahamstown, but Antarctica is the only place in the world with territory known as Graham Land. Unfortunately, it was not named for an achievement on the part of any Graham himself, but is the result of the commissioning in 1832 by Sir James Graham, then the First Lord of the Admiralty, of an expedition led by John Biscoe.

Neither the United Kingdom nor Scotland would pretend that there was any territorial claim involved, but we are really dealing with a power of governance and administration. I note in passing that there has been a consultation on a new Antarctic Bill that ended on 12 February 2010 but which does not seem to have produced any follow-up. Perhaps it has fallen foul of the uncertainty about the various devolution proposals. Can my noble and learned friend the Minister tell us what interest the Scottish Government showed in the consultation, and does it appear that this is a power that the Scottish Parliament has ignored? In the first instance, it might appear to centre on the right to license expeditions and scientific research in the area. I would suggest that my noble friend Lord Forsyth knows a little more about this, having recently completed an expedition there.

British Antarctica covers a large area, being the area of ocean and land south of 60 degrees south latitude of the whole Antarctic area. I think that noble Lords will agree that there are great pressures currently facing the Scottish fishing industry with the endless red tape and restrictions under the revised common fisheries policy. When driven to it, fishermen might consider turning their attention to just such an area, where there is a potential commercial fishery for the Patagonian toothfish. There are of course other interests that might wish to expand their activities in Antarctica.

Of course, what we have heard is that the Scottish Parliament has not got around to discussing its committee’s recommendations, and unless the Minister can enlighten us, we do not know whether the Scottish Government consider that they have any interest in their current power in the area. A factor on which I am tempted to speculate is that their interest might be dampened by the consideration that, if they were required to act in the administration of the area, their current plans for a defence capability, the scope of which is supposed to be based on that of some of our Scandinavian neighbours, might require a good deal of re-estimation. I understand that they may be thinking of having an army of which 60 per cent would have the capability of being deployed in other parts of the world, but if their navy is limited to a few frigates and a variety of smaller boats with no submarines, there would not be much capability outside Scottish waters. A great attraction for the young used to be, “Join the British Navy and see the world”, but I suggest that that might become “Join the Scottish Navy and see St Kilda”. It might be a little speculative to think that, in considering this, the Scottish National Party sees that having a responsibility for this area might stretch what it has in mind in terms of providing fisheries protection or some other role, and there is no way that the type of defence equipment that Scotland is likely to have could be stretched in this field.

In spite of this sort of speculation, does my noble and learned friend know of any good reason why Scotland’s influence should be excluded from its possible responsibilities in this area?

13:16

[Lord Forsyth of Drumlean]

My Lords, I welcome this clause, and indeed when discussing the Scotland Bill offstage with my noble friend, he has tried to persuade me that it is a great Bill because it would bring back control of Antarctica to the Westminster Government, although “control of Antarctica” is perhaps putting it too strongly. Of course, another week has gone by and the Scottish Parliament has still not debated the report of its own committee, which suggests that legislative consent should not be given to this clause. So as my noble friend the Duke of Montrose has pointed out, it is difficult to surmise why the committee might now wish to retain responsibilities in respect of Antarctica, and the previous committee quite sensibly took the view that Antarctica should be a matter for the Westminster Government and the Foreign Office. As far as I know, Donald Trump has no plans to build a leisure facility in Antarctica, so I cannot imagine why the First Minister would think that his writ should run to Antarctica.

As my noble friend indicated, I had the pleasure of going to Antarctica a year ago, and it really is a spiritual experience. It is quite amazing. It is the only part of the planet that is completely unspoiled and the only example of an international treaty that I can think of which has actually worked. I think that that treaty is now up for renegotiation and renewal and it is absolutely clear that this clause is required because it should be obvious to everyone involved in those negotiations what the British interest is. I hope that the British interest will rest with ensuring that Antarctica remains a place where scientific endeavour and experiment can be carried out and which is protected from exploitation.

[Lord Foulkes of Cumnock]

My Lords, the noble Lord is being far too modest in saying that he went on an expedition to Antarctica. He climbed Mount Vinson, the highest mountain there, and he sent many of us dispatches which we received with great interest. He also raised hundreds of thousands of pounds for charity, and I think he should be commended for all of that.

[Noble Lords]

Hear, hear!

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord. I think that he and I need to be careful because we will soon be appearing in the nat blogs as an example of an unholy alliance. I have suggested to my noble friend that we should form a roadshow and go around Scotland extolling the virtues of the union. The only other explanation I could think of for why the Scottish Government are now pressing for some control over Antarctica is that perhaps they think it might be a good idea to pass regulations keeping me there on ice for the winter in order to avoid open debate. I am most grateful to the noble Lord, and I thank him for the cheque he sent towards the fund for Marie Curie Cancer Care.

I support this clause because it is entirely sensible. I suspect that it was an oversight because there is a very serious job to be done. While I was in Antarctica I met some scientists who were drilling holes in order to measure movement in the ice-cap, but one of the problems they faced was that they kept on hitting gas and oil. There are considerable mineral resources in Antarctica and I hope that they will stay there for a long time so that Antarctica is preserved. I hope that the British Government will take very seriously their responsibilities in this regard.

My noble friend the Duke of Montrose also mentioned the Scott expedition and the centenary of Scott’s arrival at the South Pole—only to discover that Amundsen had beaten him there. We all celebrate the courage that Scott and his party showed in their disastrous attempt to get back to safety from the South Pole.

So I welcome the clause. Of all the clauses in the Bill, it is the one that I can endorse with most enthusiasm. I am most grateful to my noble friend for ensuring that the interests of Antarctica are in good hands.

[The Earl of Mar and Kellie]

My Lords, does the clause in any way inhibit Scottish universities’ polar research? My noble friend has been to the Antarctic. In 1902, William Speirs Bruce led the Scottish national Antarctic expedition in the steam yacht, “Scotia”, its research ship. The “Discovery” was built in Dundee. Speirs Bruce also explored the Arctic, and one can still find the remains of Brucehaven in Spitsbergen. Perhaps I may ask a question that is vaguely similar to one asked by the noble Lord, Lord Forsyth. Are we trying to prevent Scots universities exploring or researching in Antarctica but not in the Arctic?

[Lord Boyd of Duncansby]

My Lords, we support the inclusion of the clause, which seems sensible. Antarctica is obviously an important international resource. It is regulated by a treaty which, as we have heard, is now up for renewal, and it is clearly important that environmental protections are put in place to preserve Antarctica as a pristine part of the planet. Perhaps I should declare an interest as having acted for Donald Trump in a certain planning inquiry, but I assure noble Lords that there is no connection between my supporting this clause and Mr Trump.

As a Scottish Minister, I was not aware that we had any responsibility for Antarctica. I see my noble friend Lord McConnell nodding, so I do not think that he was aware of his responsibility. Clearly, that was a dereliction of duty.

[Lord McConnell of Glenscorrodale]

My Lords, I can confirm that I was aware of my responsibilities as First Minister of Scotland, but I can also confirm in response to the noble Duke, the Duke of Montrose, that at no time in the five-and-a-half years that I served as First Minister of Scotland was I ever asked a parliamentary question on this subject, was a parliamentary debate on it ever suggested or, for that matter, did we ever receive any correspondence on it.

[Lord Boyd of Duncansby]

The question that I was going to pose was why we did not extend the ban on smoking in public places to Antarctica. Clearly, that was an oversight on our part. We could also have extended the scheme for insulation of older persons’ homes, which was one of the then Scottish Executive’s schemes. Of course, we are now spared the question as to whether the referendum on independence should also extend to Antarctica. The noble Duke, the Duke of Montrose, has pointed out that if independence was ever to come, the First Minister would not have to consider whether to expand his navy by adding an ice-breaker to it. We fully support the clause.

[Lord Wallace of Tankerness]

My Lords, I am grateful to my noble friend the Duke of Montrose for giving us the opportunity to discuss this matter and to all those who have welcomed this clause. I join my noble friends the Duke of Montrose and Lord Forsyth in saluting Captain Scott and his four fellow adventurers who on 17 January 1912 reached the South Pole. We are all conscious that theirs was a long struggle that ended very sadly, but, nevertheless, 100 years on, we remember the extraordinary feat of those explorers. I also join those who have paid tribute to and saluted my noble friend Lord Forsyth for climbing Mount Vinson last year. We all remember getting the reports and his managing to raise substantial funds both for Marie Curie Cancer Care and Children in Need India.

If the former First Minister knew that he had responsibilities for Antarctica, it is clear that he was not advised on it by his senior law officer, and he certainly did not share the fact with his Deputy First Minister.

My noble friend the Duke of Montrose asked about the draft Antarctic Bill. It was in the context of preparing for that draft Bill that it became apparent that, while outer space had been reserved, Antarctica had not. No doubt the noble Lord, Lord Sewel, will tell us why that was the case.

[Lord Sewel]

Does the Minister agree that it is a disgrace that, because of the incompetence of Ministers in 1998, we have had to re-reserve Antarctica, which is now finishing up where it belongs?

[Lord Wallace of Tankerness]

It was oversight, I suspect, but it is important that we now address it. Following completion of the consultation, the Antarctic Bill is drafted subject to minor amendments and is awaiting parliamentary time. There would have been a clause in that Bill seeking to resolve the devolution issues, but, as this Bill is now before Parliament, we thought that it was more appropriate to deal with it here.

[Lord Foulkes of Cumnock]

Will the Minister confirm that South Georgia and the South Sandwich Islands are not included in the definition of Antarctica?

[Lord Wallace of Tankerness]

I hesitate, because I recall seeing a definition of Antarctica as being all seas and islands below 60 degrees south. I was assigned to an Antarctic Bill in the House of Commons because I represented islands north of 60 degrees north, which seemed to be interesting logic. I think that, because South Georgia and the South Sandwich Islands are British Overseas Territories, they are not included in the definition—perhaps I will receive some clarification on that.

[Lord Foulkes of Cumnock]

As I understand it, the Falklands are a dependent territory of the United Kingdom and the South Sandwich Islands and South Georgia are dependencies of the Falklands. I presume that they are not included because of that. That is important given recent statements in Argentina and the importance of those two island groups as well as the Falklands.

[Lord Lyell]

Perhaps I may make my first intervention—I am sure that the Minister will be delighted. I have an interest very similar to that of my noble friend the Duke of Montrose in that in the first week, even before events gravitated to the Falkland Islands, great events took place on the island of South Georgia. In the communications with the Royal Marines and the forces there, there was considerable discussion about the Lyell Glacier, named, definitely, after my great-great-great uncle, one of the fathers of modern geology. As far as I am aware, there is no mineral wealth under the Lyell Glacier or anything that I or anybody in Scotland would be able to claim, but the charts and accounts will give us some assistance. It would be very helpful if my noble friend Minister could give us clarification as to what is classified as “Antarctica” for the purposes of the Bill.

[Lord Wallace of Tankerness]

My Lords, for the purposes of the Antarctic Act 1994, which was to implement our international obligations, “Antarctica” means,

“the continent of Antarctica (including all its ice-shelves) … all islands south of 60° South latitude (including all their ice-shelves)”—

so I do remember something from 18 years ago—

“all areas of continental shelf which are adjacent to that continent or those islands and which are south of 60° South latitude, and … all sea and airspace south of 60° South latitude”.

The important point is that these are the areas to which the international obligations, many of which are of an environmental nature, apply. As I have indicated, that became apparent in considering the draft Antarctic Bill.

13:30

My noble friend Lord Mar and Kelly asked about the position of Scottish universities. The important point is that we take our responsibilities for compliance with our obligations under the Antarctic Treaty very seriously. As my noble friend said, Antarctica is the last unspoiled wilderness and has been the subject of many successful international treaties. The United Kingdom Government certainly take their obligations under these treaties very seriously. We want to ensure a strong treaty system which also protects our sovereignty in relation to the British Antarctic Territory. Therefore, we want the position to be completely clear and without any dubiety.

Updating Schedule 5, therefore, to include Antarctica retrospectively, will validate any legislative and executive Acts that the United Kingdom Government have passed since devolution that make provisions for Scotland in relation to Antarctica. It will also ensure that any organisations or institutions based in Scotland, including academic research institutions such as the University of Edinburgh, are then able to go to Antarctica and carry out their work in full compliance with the treaty. The Arctic is somewhat different in that the Arctic states themselves have sovereignty over their domestic territories. Issues over responsibility for regulation of activities that arise in the Antarctic do not arise in the Arctic. The Antarctic Treaty and related documents have to be implemented by the United Kingdom. As I have indicated, this particular clause corrects an oversight and makes retrospective provision to cover any Acts passed.

I was also asked about the position of the Scottish Government. It is certainly my understanding that the Scottish Government have expressed no direct interest in Antarctic affairs and have no expertise to engage with future international negotiations in that respect. I therefore very much hope that by passing this clause we can regularise an important issue.

[The Duke of Montrose]

My Lords, I thank all those who have contributed to this discussion. It has been some time since Antarctica has been before your Lordships' House and covered in so much detail. It is particularly interesting to hear former Scottish Ministers voicing what the perspective was when they were holding office north of the border. I am glad to think that my noble and learned friend did not think that the Scottish Parliament would be less assiduous in maintaining the pristine nature of Antarctica because I am sure that they will have looked at that with great care.

Clause 14 agreed.

House resumed. Committee to begin again not before 2.33 pm.

People Trafficking

Thursday 2nd February 2012 Lords Chamber

Question for Short Debate

13:34

Tabled by

[Lord Eames]

To ask Her Majesty’s Government what is their assessment of the trafficking of adults and children into and within the United Kingdom.

[Baroness Stowell of Beeston]

My Lords, I remind your Lordships that this is a timed debate and a lot of speakers are down to speak. With the exception of the noble and right reverend Lord, Lord Eames, and my noble friend Lord Attlee, all speeches are limited to two minutes. As your Lordships know, I have a responsibility to everyone who wants to speak so I ask noble Lords to keep to time. If anyone is still speaking after the clock strikes two it will be necessary for me to intervene so that we can be in Committee again at 2.33 pm.

[Lord Eames]

My Lords, my purpose in introducing this short debate in your Lordships' House is to rectify something that, in normal circumstances, is quite understandable. Spasmodically, our attention is drawn to cases involving human trafficking but the media centres on individual cases. With our preoccupation with such crimes and issues as drug trafficking, we are inclined at times to forget the constant nature of this trafficking disease affecting men, women and little children.

Slavery was abolished in this very House 200 years ago; a fact for which we can be justly proud and grateful. But the harsh reality as we meet is that slavery under different headings has grown 10 times in size and complexity since 1807. No longer is human slavery visible, acceptable and legal as it was in Wilberforce's time. Today it is invisible, hidden and so hard to detect. According to the United Nations, it is the second largest criminal activity in the world after drug smuggling, netting $36 billion annually to traffickers.

Statistics highlight the scale in the United Kingdom with people from 40 different countries arriving here in the past six months. Yet that is only the tip of the iceberg as only a small percentage of those trafficked are in fact referred to the national referral mechanism which keeps these figures, a procedure that is run by the Immigration Service. This determines whether victims can remain legally in the UK for the permitted 45-day reflection period.

The Government established the UK Border Agency to give clearer control over, among other things, trafficking through our airports and ports. Despite this, we continue to read in the press of trafficked women incarcerated in brothels, of young boys forcibly brought here from Vietnam to work in such places as cannabis farms, of men brought in as victims of debt bondage and turning up in East Anglia, of internal trafficking of men in Bedfordshire, or of Taiwanese fishermen ending up as victims of trafficking on trawlers off the Irish coast. Then there are children, just like Fagin's children, being caught pickpocketing, shoplifting or stealing from ATMs, earning thousands of pounds each year for the traffickers. These are only some of the tragic human tragedies being played out in our own country even as we debate this issue.

The right honourable Prime Minister has stated on many occasions that his Government will be tough on traffickers and compassionate towards victims. He said just that in Downing Street last October to mark Anti-Slavery Day. I do not doubt the good intentions of the Government in this regard, but I fear that much remains to be done if we are to be freed of modern-day slavery.

Let me make some suggestions to the noble Earl who will respond to this debate. In doing so, I thank him for the concern that he has shown in my preparation for this discussion. First, can the Prime Minister give the lead in better co-ordinating the seven major government departments that share responsibility for different aspects of anti-slavery policy? An interdepartmental ministerial group used to meet monthly, but in the past 18 months it has met twice only. What message does that send out of a Government really taking slavery seriously? Surely greater co-operation and co-ordination are essential at that level.

Secondly, 2012 is surely a wonderful opportunity to use the advent of the Olympic Games to make a monumental effort in the spirit of the Games to make another attempt at ending slavery within our shores in the United Kingdom.

Traffickers are astute, sophisticated and ruthless. They use the most advanced technology, and their networks spread beyond frontiers. Pickpocketing and ATM thefts by Roma gangs in Westminster can overnight be moved to another part of Europe. Sex slaves destined for the United Kingdom can be redirected to the Gulf states. The use of forged passports, fictitious uncles accompanying equally fictitious nephews and nieces, and the use of different routes—particularly in our own case the United Kingdom border with the Republic of Ireland—involving road, rail, air and sea all mean that traffickers will continue to find gaps in the border and the entry points.

Are the Government satisfied with the levels of identity checks at our points of entry, particularly in relation to the so-called domestic—yet international—flights from the Republic of Ireland? Then there are the numbers of child asylum seekers who arrive on our doorstep every year, many without passports, which have been destroyed in transit on planes or even eaten and digested on lorries and trains prior to arrival. A report by the Children’s Commissioner for England has recently drawn our attention to the urgent needs in this respect. Aftercare of victims in this country raises serious questions. What is being done about those children who disappear from refuge institutions and homes? Between 2007 and February 2010, 942 children trafficked into the United Kingdom were rescued; but no less than 301 went missing from so-called safe homes. Is this nothing less than a disgrace?

Under the previous Administration, the Pentameter 1 strategy was introduced, whereby each police force was required to give greater priority to combating trafficking. What has happened since? The number of successful prosecutions in the UK is low, even compared to no less a country than Romania, where over 500 traffickers are in jail. The detection and prosecution of traffickers must be intelligence-led. Surely greater priority must be given to this issue—such as that evident in the Police Service of Northern Ireland and, here, in the Metropolitan Police.

NGOs are very active in the aftercare of victims, but I believe from what I have learnt that there is a need for greater co-operation and sharing between many of those NGOs. It was encouraging that the present Government agreed to sign up to the EU directive, but this does not have to be implemented until 2012. The government strategy document published last July has made little progress with its implementation.

Finally, I want to pay tribute to Anthony Steen, the former MP, for establishing the most effective all-party parliamentary group, of which my colleague in this House, the noble and learned Baroness, Lady Butler-Sloss, is joint chairman.

With the time available, it has only been possible to scale the tip of this iceberg. However, I hope that by debating it even for this short time, we will do something to keep this human tragedy before our attention.

13:45

[Lord McColl of Dulwich]

My Lords, on 12 January, the Government announced that they were making the UK compliant with the European human trafficking directive by introducing two amendments via the Protection of Freedoms Bill. I warmly welcomed this, but although I fully appreciate that Britain was already compliant with much of the directive even before we chose to opt in, I was struggling to see how all the remaining areas of non-compliance could be addressed by secondary legislation. I asked the Minister whether he would write to me, setting out all the planned secondary legislative changes to make us fully compliant. I am very grateful to my noble friend Lord Henley for the very detailed letter that he sent me yesterday.

I am pleased that the Government are looking at how they can make victims automatically eligible for special measures to ensure they are supported and protected during criminal proceedings against traffickers. I am also pleased that they are considering whether the need for effective investigative tools needs to be transposed into legislation and whether more is required beyond the national referral mechanism on assistance and support for victims.

However, I am still disappointed by the Government’s position on the lack of civil legal aid for trafficking victims to claim compensation, other than through the exceptional funding route. It seems that by signing up to the directive, the UK has, by definition, committed to funding legal aid for trafficking victims as part of the routine victim assistance and support, not as something exceptional. Having said all this, I stress that my horizon is not defined by the directive. I want to see the UK regarded as a beacon of good practice in this area, not as simply doing the minimum to toe the line. Thus, I could not agree to the suggestion from the noble Lord, Lord Henley, when responding to the Second Reading of my Bill, that those aspects of it that were not required by the directive could be dispensed with, as if its ambitions were defined by the directive. To that end, I very much look forward next week to moving my child trafficking amendment to the Protection of Freedoms Bill, generously supported by co-signatories from all sides of the House. I also look forward to the Committee stage of my Bill.

13:47

[Baroness Massey of Darwen]

My Lords, I wish to thank the noble and right reverend Lord, Lord Eames, for instigating this very important short debate. I shall focus on child trafficking, possibly the most horrendous form of this evil, as children are so vulnerable to abuse and to legal ramifications that are too puzzling for them to follow. That is why they need help, support and advocacy.

Along with the noble and right reverend Lord, Lord Eames, I ask the Minister about the co-ordination of services at a national and local level. Children are clearly slipping through nets and many do not get the support they need. The very useful ECPAT booklet, Top Ten Questions on Child Trafficking, sets out very clearly many of those problems. A report from CARE argues, as does ECPAT, that although there is an inter-departmental ministerial group on trafficking, what is needed is an independent monitor, or a national rapporteur, who would assess policy and practice. We have no systematic collection and analysis of data. I believe that the Netherlands and Finland do have rapporteurs and that this has facilitated better analysis and reporting.

I know that there is good practice at a local level. I hope that it is being shared. I will give two brief examples. The Community Partnership Project was set up in 2006 by the London Safeguarding Children Board to improve the safeguarding of children through collaboration between statutory services and communities and faith groups in eight boroughs. One issue was child trafficking, and the board has been very successful in engaging those groups. One recommendation is that partnership with local communities and faith groups should be maintained across London. Such an initiative would surely be effective in other areas of the country.

The same safeguarding board has produced a best practice multi-agency toolkit, bringing together council services and the police. Is anyone collecting and disseminating all the examples of good practice? I return to my concerns that we need systems to deal with child trafficking that are co-ordinated across agencies, and that the Government must provide a strong and sympathetic lead. I submit that a national rapporteur and child advocates for children would be a great help, and that we ought to take account of this debate today.

13:49

[Baroness Butler-Sloss]

My Lords, as the co-chairman of the parliamentary group on trafficking and a trustee of the Human Trafficking Foundation, I am also delighted that the noble and right reverend Lord, Lord Eames, has introduced this debate. I also congratulate the Government on opting into the European Union directive and on their excellent strategy policy. I do not doubt the commitment of the Prime Minister and the Government to working to combat the evil of human trafficking, but the issue—as the noble and right reverend Lord, Lord Eames, has already said—is a question of implementation. Following the noble Baroness, Lady Massey, I will also focus on one requirement of the directive—the national rapporteur.

A central requirement of the directive is to have a place where information from different sources and actors is systematically gathered and analysed, to be provided by a national rapporteur or equivalent mechanism. The requirements include the collection of data; independent status; a clear mandate to have access to all involved agencies, including law enforcement; and competency to report directly to the Government and/or Parliament. In this country, the agencies include the NRM process, which does not take in all victims, so its statistics are incomplete; the human trafficking centre at Birmingham, which has incomplete statistics; the police, who are involved mainly through SOCA, and there will be the National Crime Agency; the UKBA and, in due course, the UK Border Police; the Salvation Army, which has a contract to help adult victims; and local authority social services, which help child victims, but there are no accurate statistics on how many missing children are actually trafficked.

There are, of course, a considerable number of dedicated NGOs filling many gaps, but there is no data collection and analysis agency independent of government. The noble and right reverend Lord, Lord Eames, has already referred to the inadequacy of the Inter-Departmental Ministerial Group, but I would like to add to the two meetings to which he referred. In February, five Ministers attended, with nine apologies; in October, six Ministers attended, with 11 apologies. That is not compliance with the directive, or indeed an adequate equivalent mechanism. If we are to be seen as in the vanguard of fighting effectively the horrors of trafficked adults and children and denying to traffickers some part of the huge financial rewards of their appalling trade, the obvious answer is a national rapporteur.

13:51

[The Lord Bishop of Derby]

My Lords, in a short time I just want to give a couple of headlines from the grass roots, where I work in this area with people in Derbyshire. First, I want to underline the point made by the noble and right reverend Lord, Lord Eames, about the scale of this. My contacts in the police force in Derbyshire assure me that the scale is much greater than anything that is admitted on the surface in the strategy, so there is a real question about how we are going to resource the strategy that is on the table if there is much greater need than has been identified. Even in Derbyshire, even last week, young women from eastern Europe have been rescued from a small market town where people are being trafficked by international gangs. Very young Chinese girls have been rescued from brothels. People in the city of Derby tell me that at the local sexual health clinics the number of young women in the trafficking scheme who are under 18 is increasing dramatically. The scale is a really big issue.

With increasing demand, there is the problem of making a proper response. In Derby we have Safe & Sound, which is an excellent organisation working with many people being trafficked. The local authority has just removed two people who have been seconded to them, because of the cuts, and it also asks how the police are going to fulfil their role when cuts are being made in police resourcing.

My final point is that we need to see this very much as a moral issue. My contacts in the police force are horrified to see human beings treated by commodities—just being sold. That is a gross moral issue, not just about supply but about demand. There is obviously enormous demand to take advantage of sexual exploitation. What does that say about moral standards and understanding of sexuality in our society? What does it say about a lack of discipline and taking other people seriously as human beings? I ask the Minister that if we withdraw RE from such a central role in schools, who but the great religions is going to provide any moral framework to give people guidance about sexual behaviour in our society?

13:54

[Baroness Jenkin of Kennington]

My Lords, I too congratulate and thank the noble and right reverend Lord on and for securing the debate. Trafficking of adults and children, as is clear from the debate so far, is a really important issue that we must address. I commend the Government for the action that they have taken in fighting against human trafficking this far. In particular, I wish to mention three key steps that they have taken to address modern-day slavery. First, the release of Human Trafficking: The Government's Strategy in July 2011 was an encouraging move in setting out the Government's plan of action to tackle this trafficking. Secondly, the Government have introduced primary legislation to bring about compliance with the European directive on human trafficking through amendments to the Protection of Freedoms Bill, currently on Report. This action is most encouraging. Thirdly, as the letter to my noble friend Lord McColl demonstrates, the Government are actively considering how to make changes to secondary legislation to complete the process of meeting the directive's requirements. I thank the noble Lord, Lord Henley, for his commitment to the fulfilment of the directive in bringing forward these legislative measures.

Although these achievements should be rightly celebrated, there is obviously still much more to be done. While I recognise that there is no need to introduce a system of guardianship for trafficked children or an independent national rapporteur in implementing the directive, I hope that the Government will not dismiss any opportunity to improve our care for victims in these areas so that Britain can lead the way. It is in fact appropriate that we find ourselves discussing this issue today as, only yesterday, the BBC reported the plight of British men who are trafficked out of the UK and forced to work as slaves on construction sites throughout Europe. At least 30 victims have been identified to date, but it is believed that that number is just the tip of the iceberg. I know that you will agree that stories such as these ought to spur us into swift action to address these awful human rights abuses.

I close by saying that I look forward to supporting the Government as new laws are introduced that will further protect all individuals who are subject to this violent injustice.

13:56

[Lord Anderson of Swansea]

My Lords, I welcome the Government’s response to the Bill proposed by the noble Lord, Lord McColl, and their plans to bring the UK into full compliance with the EU directive.

I make three quick points. First, I urge the Government to continue to facilitate the involvement of the voluntary sector in the care of trafficked victims, particularly children, and to look at the practice in Wales following the guidance issued last year, in addition to looking at the introduction of an anti-human trafficking tsar in England, as already happens in Wales. Perhaps that is the national rapporteur. Secondly, I urge the Government to respond positively to the recommendation in last month’s report of the Children’s Commissioner for England, Landing in Dover, on the opportunity for trafficked children to instruct a legal representative, which is in the same spirit of Amendment 57 to the Protection of Freedoms Bill, which the noble Lord, Lord McColl, seeks to move next Monday. I hope that the Government will respond positively to that.

Finally, as a Member of the Parliamentary Assembly of the Council of Europe, I understand that the Government will shortly receive the draft GRETA report on the UK’s conduct with respect to the Council of Europe convention on trafficking. Will interested Members of this House be able to have sight of that draft report and an opportunity to comment? As the current chairman of the Council of Europe, we in the UK surely have the opportunity to be a model and show leadership in this area of great social concern.

13:58

[Baroness Doocey]

My Lords, I want to concentrate on the children who are trafficked into the UK. One key problem is the points of entry. Children as young as 12 may travel unaccompanied from France and Belgium via Eurostar, provided that they have a form signed by a parent or guardian, listing who will be collecting them when they reach St Pancras. The problem is that there are no checks at all on who signs the forms, no facilities on the trains—the children are not supervised—and no controls when they arrive at St Pancras, so the entire process is completely and utterly meaningless.

I call on the Government to do three things which would not cost much money at all but could make a very big difference. First, we could ensure that border staff check the identity of the parents or guardians before allowing unaccompanied children to board the Eurostar. This could easily be done by making it a requirement for parents to turn up with their passport and/or with proof of guardianship. Secondly, we should persuade Eurostar to provide a dedicated space in one of their carriages for unaccompanied children, and for this to be supervised throughout the journey. Finally, we should ensure that a small room is provided at St Pancras International where children can wait to be collected by a nominated person, who must also produce their passport to prove their identity.

If these three simple measures were put in place, it would go a long way to alleviating the suffering of many of these unfortunate victims of child trafficking.

14:00

[Lord Bew]

My Lords, I, too, thank my noble and right reverend friend Lord Eames for securing this debate. As he made clear in his remarks, this problem has a long-term historical and international context, something that anybody can read in the more grim passages in Dostoevsky's Notes from Underground, published in 1864. My noble and right reverend friend also referred to the Irish context, which, as he made clear, is also important to the United Kingdom. I would like to follow in that spirit. Just this week the Italian judge Maria Grazia Giammarinaro, who is the OSCE special representative on human trafficking, referred to what she called a new trend involving Ireland: the trafficking of people from Bangladesh and Pakistan for labour exploitation, particularly in agriculture, construction, hotels and restaurants. Given the porous nature of the border within Ireland we have to bear these things in mind, as my noble and right reverend friend has already indicated.

I want to say two very specific things about the Irish context. Thanks very much to some excellent journalism by writers such as Henry McDonald of the Guardian, there is a good public opinion on these questions but I have one technical question for the Minister. Will the Minister confirm that after the government amendments on human trafficking to the Protection of Freedoms Bill, Sections 57 to 60 of the Sexual Offences Act remain unchanged in relation to the provision for human trafficking in Northern Ireland, and that these will be in place until the Northern Ireland Assembly introduce their own provisions on human trafficking for sexual exploitation? I am worried—I hope it is a false worry—that we may have created a gap by the recent benign move that the Government have made.

14:02

[Lord Rogan]

My Lords, I, too, congratulate the noble and right reverend Lord, Lord Eames, on initiating this debate. As he said, our nation can rightly take pride in its pivotal role in abolishing the worldwide slavery trade during the 19th century—a decision taken primarily with regard to the force of the moral imperative to do so. Yet it saddens me that the modern guise of slavery, human trafficking, is on the rise in this country and across Europe. Human trafficking is a vile and foul crime that condemns its victims to the most base and inhumane of treatments, be they men, women or children.

We are all aware of stories from across the kingdom of trafficked people being subjected to abuse of a kind we thought we had largely dispelled from the civilised world. In Northern Ireland, which is hardly a mainstream location for international criminal gangs, the police have rescued around 75 victims since 2009, many connected to the sex trade. As a senior PSNI detective superintendent told the Northern Ireland Policing Board last December, this figure is just the “tip of the iceberg”. There is a need for the United Kingdom to take controlled and concentrated measures to intercept those gangs, both from home and overseas, who are trading in this human misery to supply demands for cheap labour and—

[Baroness Stowell of Beeston]

My Lords—

[Lord Rogan]

My Lords, the clock started at two minutes.

[Baroness Stowell of Beeston]

I am so sorry. I apologise to the noble Lord.

[Lord Rogan]

Can I start again at two minutes? While tackling this supply may require greater resourcing for the UK Border Agency and the police forces throughout the kingdom, tackling demand is a more difficult issue. It strikes me that we need to do more to drive home the message that those who are abusing trafficked people, particularly in the sex trade, need to be aware that they are complicit in an offence which is akin to slavery. They should face severe consequences for their actions but unfortunately, for too many, this is currently a crime without fear of consequences. That needs to end.

For instance, customers who pay for sex with those who have been trafficked—people who are clearly under duress or false pretences—should face the prospect of being charged with rape. As the law stands, successful convictions would be difficult to secure but it would certainly help put out a clear message that society will not turn a blind eye to this problem. The same moral imperative which lay before Parliament to eradicate slavery in the 19th century lies before this generation: to do all that it can to eradicate human trafficking in this world.

14:05

[Lord Sheikh]

My Lords, I welcome the opportunity to speak in this debate as I have a long-standing interest in human trafficking. Some 200 years since the abolition of slavery, it is depressing that there is a continuing need to confront this evil. I very much appreciate the efforts made by the Government to address this problem, and I support the human trafficking strategy launched last July. The strategy focused on raising awareness of trafficking and ensuring victims are safeguarded and protected. We need to redouble our efforts to help victims: this needs a local, as well as a national, focus. I commend the work of local anti-trafficking groups. We cannot hope to overcome this crime unless we are successful in raising the profile among communities.

I wish to speak about the effects of trafficking on children and young people who are its victims. In doing so, I congratulate Professor Jenny Pearce of the University of Bedfordshire and the ongoing commitment of the NSPCC. Professor Pearce's research highlights considerable variations in practitioners’ understanding of the meaning of trafficking and problems with the delivery of child-centred practice. Trafficked young people are especially vulnerable, and I welcome the guidance relating to child trafficking issued last October. Those responsible for their welfare, as well as those tasked with law enforcement, need to be equipped to respond fully to their specific, individual needs. We need a system whereby there is adequate signposting to national agencies and professionals providing appropriate support. We must ensure that vulnerable children are protected. Their safety and welfare ought to be prioritised. I look forward to the Minister’s response about what more we can do.

14:07

[Baroness Goudie]

My Lords, I congratulate the noble and right reverend Lord, Lord Eames, on arranging to have this short debate. As short as it is, it is very important to raise the profile of human trafficking. I declare that I am a pro bono member of the Vital Voices Global Partnership board, and chairman of the Women Leaders’ Council of the United Nations. I congratulate this and the previous Government on what they have done in taking the lead on human trafficking globally but today, in the few minutes that I have, I will concentrate on the question of forced labour. That is now becoming a huge issue in this country in the agricultural trade, in the diplomatic service and in the building and construction industry.

I ask the Government and the Minister to consider looking at the Athens protocol, which was agreed two years ago, and setting up a government inquiry, like the Davies report, to persuade companies to sign up to the Athens ethical agreement. This would mean that companies would look at the source of their goods and the source of their labour. If this was signed up to and the BIS department was involved in this, we could help to eradicate the question of forced labour in the whole of the United Kingdom. This is an area where we have very few prosecutions—and where we have them, they are not very large. There are sometimes very small fines. We also have to remember that no trafficked person lives a very long life and that this is a cash industry. That is why the Government now have to take a longer stand on forced labour, in particular, as I said, in the agricultural trade, in diplomacy and in the building trade.

14:09

[Baroness Hamwee]

My Lords, the number of speakers today may reflect an increasing awareness of trafficking and modern slavery. I have heard it said that that awareness is somewhere like where domestic violence was 20 years ago. I stress that because awareness must be the foundation of tackling the issue. It was only when I was in the middle of one of my own speeches at a conference that I realised that children whom one often used to see at major road junctions in London advancing with a soapy squeegee were probably themselves slaves.

I mean awareness not just on the part of the general public but right through the many relevant agencies, down to the very front line. It always seems quite difficult that the UK Border Agency, whose job is to protect our borders, which is fairly close to keeping people out, needs to be particularly sensitive to possible victims of trafficking. There is something of a disconnect there.

The sensitivity of all of Government and society must extend to what is needed for the victims to recover. We are the host country, and in many cases the people who are trafficked here think that they are coming to a better life. In some cases the trafficker thinks so, too—the mother living in poverty in Africa who is sending her daughter to live with an auntie in London.

I have one point regarding the care of victims, and I appreciate that there is a new consultation paper on the protection and support of all victims. The noble and right reverend Lord, Lord Eames, mentioned 45 days, but that may be far too short a time for a traumatised young woman, say, to decide whether she wants to return to her own country. Within 45 days, she may not even have got to the point where she can discuss her own situation.

Trafficking is a huge-scale crime and big business with individuals at its heart, and they need both justice and care. As my pumpkin has not quite arrived, I have time to thank the noble and right reverend Lord, Lord Eames, for introducing this debate.

14:11

[The Earl of Sandwich]

My Lords, for nine years I was a council member of Anti-Slavery International. I heard of many cases of slavery in north Africa but there are now cases in the UK and the rest of Europe that show the depths to which our own criminal gangs can sink. We have heard already that British victims have recently been trafficked in Europe by rogue gangs that force them to work for long hours in filthy conditions for little or no payment.

Some 10 or 12 years ago, the Home Office showed that at an absolute minimum there were hundreds of children and women being trafficked; now we are talking of at least tens of thousands. The Government have changed their mind and opted into the new EU trafficking directive, but we have only a year in which to comply. As the noble Baroness, Lady Hamwee, has just said, the Children’s Society says that child protection is being sacrificed to immigration rules. Will the Minister assure me that the legal framework will be revised for trafficked children to conform to international standards and that these children are not going to be treated as immigrants?

There is no single monitoring body in the UK tasked to look at the scale, nature and trends of human trafficking. I suggest, with Anti-Slavery International and others, including my noble friends, that an independent watchdog responsible to Parliament would be best placed to research and document that abuse. The Government may say that the National Crime Agency will have a key role in building on the existing arrangements once it is established next year, but without an independent monitoring system we cannot be sure how effective and co-ordinated its work will be.

14:13

[Lord Rosser]

My Lords, last month the Government introduced amendments to the Protection of Freedoms Bill to meet some requirements of the recent EU directive on human trafficking. However, they do not yet appear to be addressing the disappearance from the system of child victims of trafficking in this country. Some 32 per cent of identified child victims of trafficking went missing from care between 2007 and early 2010.

Since Articles 12 and 13 of the EU directive state that signatories must provide assistance, support and protection for child victims of trafficking, will the Minister say on what basis, and in the light of what consultations with which organisations, the Government have decided that the UK currently complies with those two articles? What is the Government’s response to calls by charities such as CARE and ECPAT UK for the introduction of a system of guardianship for child victims of trafficking?

The directive requires that the UK establishes a national rapporteur to independently monitor the implementation of the directive. Is it the Government’s intention to give this responsibility to an individual or a committee independent of government in order to ensure both effective oversight of the implementation of government policy on trafficking and accountability?

The Government have indicated that they believe parts of the directive can be implemented in full through secondary legislation and through operational measures and routes. Not everyone will share the Government’s view on that point, but we will wait to see the provisions of any such secondary legislation.

I thank the noble and right reverend Lord, Lord Eames, for securing this debate. We welcome the progress that has been made in combating human trafficking, but it is clear that there is still much to do.

14:15

[Earl Attlee]

My Lords, I congratulate the noble and right reverend Lord, Lord Eames, on securing a debate on this important matter and I thank him for raising it today with his usual skill and measured tone. I broadly accept your Lordships’ analysis of the situation. The Government certainly share the noble and right reverend Lord’s forcefully put view that human trafficking is a horrendous crime that needs to be addressed in a systematic and co-ordinated way. Right at the top of that process is my right honourable friend the Home Secretary, and I can assure noble Lords that she takes this matter very seriously.

As noble Lords have rightly observed, estimating the numbers of adults and children trafficked into and within the UK is difficult owing to the hidden nature of this criminal activity, but through the national referral mechanism we are starting to gain some valuable data about the scale of the problem. We know how many victims are referred. What we do not know is how many trafficking operations were successfully deterred or disrupted by the policies of this Government and the previous Government. However, for those victims we do indentify, our systems are now much more able to support them, according to their individual needs. I do not accept that Ministers underestimate the scale of the problem just because we cannot accurately measure it.

In answer to the right reverend Prelate the Bishop of Derby, I agree that this is a moral issue. I am sure that Ministers would still not be happy even if we had reduced the numbers to only 100 people being trafficked. We would not stop until we could get it to almost zero. I assure the House that this Government continue to use all resources at their disposal to identify, prosecute and convict traffickers, often working with other countries to bring the perpetrators of this crime to justice.

The noble Baroness, Lady Goudie, talked about the problem of forced labour within the UK. I can assure her that the Government are well aware of that problem.

We continue to review our approach to trafficking to ensure that we remain one step ahead of those seeking to exploit our borders. My noble friend Lady Jenkin raised the problem of men being trafficked out of the UK to places such as foreign construction sites. I was not personally aware of this but I will discuss it with my officials afterwards.

Free movement between the UK and the Republic of Ireland continues to be of immense importance to the economic, social and cultural well-being of both countries. I can assure noble Lords that the UK and Irish Governments are working in partnership to prevent abuse of the common travel area by strengthening its external border while preserving the right of free movement within it for those who are lawfully present. That is enforced by the UK Border Agency and the police carrying out intelligence-led operations to target the potential abuse of the CTA and to identify those who would otherwise seek to avoid UK controls.

Many noble Lords have expressed concerns about the vulnerability of children seeking to travel on Eurostar. Children and any accompanying adults looking to travel to the UK by Eurostar are routinely interviewed at our juxtaposed controls in France and Belgium. Officers seek to establish the relationship between children and the adults who are accompanying them or meeting them on arrival in the UK before allowing them to leave the juxtaposed border control. If trafficking is suspected, they are immediately reported to the appropriate French or Belgian authorities.

The UK Border Agency closely monitors all trains arriving from Brussels and Lille and carries out detailed checks on passengers where it is suspected that a passenger has evaded the juxtaposed controls. Full ticket controls are routinely mounted at St Pancras, Ebbsfleet and Ashford upon notification of a potential passenger who is seeking to arrive in the UK with a ticket to Lille. To supplement this, multi-agency child safeguarding periodic monitoring exercises advised by Paladin are also conducted at St Pancras. We are currently working closely with our Belgian counterparts and Eurostar to resolve the underlying issues.

My noble friend Lady Doocey raised the problem of unaccompanied children. The travel documentation and letter of consent for all unaccompanied children on Eurostar services are examined by border force officers at the controls. It is important to understand that the form signed by the parent or guardian is not designed to be a reliable check in itself; rather, it is the starting point for any inquiries that might be made by the authorities as they see fit. My noble friend also asked me to give undertakings as regards this being an operational matter for Eurostar. Officers regularly contact the parents or guardians of unaccompanied children to verify the letter of consent for travel to the UK. If there is any cause for concern on the authenticity of the consent of the parent or guardian or about the reception arrangements in the UK, officers will interview the parent or guardian. If doubts persist after all appropriate checks have been undertaken, the UK Border Agency may prevent the child travelling to the UK unaccompanied. For those children who do travel, staff at St Pancras identify unaccompanied children as they disembark and escort them to the concourse to ensure that the sponsor is present and is known to the child.

However, in my capacity as government spokesman for DfT matters in your Lordships' House, I have asked my officials to seek a visit by me to Eurostar at St Pancras. I would expect to include an examination of British Transport Police operations in that visit. I am sure that as a high-profile and responsible operator, Eurostar will be keen to show me first hand how it deals with the problems which my noble friend has identified.

Many noble Lords, including the noble Baroness, Lady Massey of Darwen, and the noble and learned Baroness, Lady Butler-Sloss, are concerned that we might not be compliant with the EU directive because we do not appear to have a national rapporteur. However, the UK is already compliant with this measure through equivalent mechanisms in the form of the UK Human Trafficking Centre as the central repository for data and the interdepartmental ministerial group for oversight. I believe that this meets the need identified by the noble Earl, Lord Sandwich. This equivalent mechanism is broadly in line with practice among our EU neighbours. We are aware of only two countries within the EU that have an independent national rapporteur on human trafficking—the Netherlands and Finland—and I am not convinced that they each operate in the same way. Several noble Lords have referred to the interdepartmental ministerial group. We recognise the need to work across government and we will consider how to strengthen the group to fulfil the national rapporteur role in the coming months. It is important to understand that the EU directive on national rapporteurs requires a national rapporteur or equivalent mechanism to assess trends in human trafficking and activities on anti-trafficking, and to work with civil society organisations and to report. It does not require the role to be independent.

Responsibility for the care, protection and accommodation of child trafficking victims falls within the designated responsibilities of local authorities for safeguarding and promoting the welfare of all children under the provisions of the 1989 and 2004 Children Acts. To support local authorities, we recently revised practice guidance on safeguarding trafficked children with the Department for Education, which will aid practitioners in identification and safeguarding of child victims of this horrible crime. Once a child is placed in care, a care plan is drawn up by their allocated social worker bringing together a range of information and support. The social worker will assess suitable accommodation, educational support and other services based on need. This care plan is regularly reviewed by an independent reviewing officer to ensure that the child’s needs are being met. This will include stability, safety and emotional well-being. IROs are also able to assist the child in obtaining legal advice. My noble friend Lord McColl of Dulwich talked about his important amendments to the Protection of Freedoms Bill. I am sure that my noble friend Lord Henley is looking forward to responding in due course. New guidance for IROs makes it clear that every child has the right to be supported by an advocate. The advocate must accurately represent the child’s wishes and feelings, irrespective of personal views on the child’s best interests.

Another key area is that of missing trafficked children, a point raised by the noble Lord, Lord Rosser, among others. Your Lordships should not underestimate the progress the Government have made on this. The first CEOP scoping report on this issue, published in 2007, found a shocking 55 per cent of trafficked children missing from their care placement, but with effective work at a local level to tackle this issue, the most recent CEOP strategic assessment showed that this figure had been reduced to 18 per cent. Local authorities such as Hillingdon, Hertfordshire and Harrow are leading the way with proactive, multi-agency partnerships to identify and safeguard trafficked children from going missing from care. Simple changes to the way they handle, for instance, a child’s access to accommodation front doors, mobile phones and other issues have allowed them to make great progress in reducing the number of children going missing. The national picture is still not good enough but the figures are undeniably heading in the right direction. The new human trafficking strategy commits us to working to raise awareness of these issues locally to ensure in all areas where there is evidence that a child has been trafficked, care planning and activities to support the child must minimise the risk of traffickers reinvolving the child in exploitative activities.

As usual, where I have not been able to respond fully to noble Lords’ substantive points, I will, of course, write. In summary, I can assure the House that this Government will lead the fight with our partners at all levels to ensure that our response to this crime remains an effective deterrent to drive down the number and level of people affected.

[Lord Rosser]

As the Minister is closing his comments, in the light of what he said about the Government’s determination to fight human trafficking—I am sure that is the case—is it the Government’s view that sentences for human trafficking are appropriate, bearing in mind that the average determinate custodial sentence for drug trafficking appears to be some 50 per cent higher than that for human trafficking?

[Earl Attlee]

My Lords, that is a detailed question on which I shall have to write to the noble Lord. An interesting problem is that it can be very difficult to secure prosecutions for trafficking. Often we see criminals being prosecuted for offences other than trafficking because it is easier to secure the evidence. I neglected to answer the question asked by the noble Lord, Lord Bew, about a possible gap in the legislation in Northern Ireland. I can assure him that we have not revoked anything and that there will be no gaps.

[Baroness Butler-Sloss]

Before the noble Earl sits down, I hope that I may ask one question. I do not have a copy of the directive with me in the Chamber but my recollection—it may be wrong—is that the national rapporteur or equivalent mechanism is required to be independent. Perhaps the noble Earl will check that.

[Earl Attlee]

My Lords, I received inspiration from the Box, saying that that was not a requirement. If I am wrong about that, I will, of course, write to noble Lords. However, the key point is that we are in line with what other European states are doing.

[Baroness Doocey]

I am very pleased that the Minister will visit Eurostar. I am sure he will find that he is knocking at an open door. Will he also agree to speak to the specialist agencies concerned with child trafficking that work at St Pancras and the Paladin team as I think he might get a slightly different view of the situation regarding the border controls and how the whole thing operates than he has given us today?

[Earl Attlee]

My Lords, I am sure that interested organisations will read this debate in Hansard. If they want to send me the right questions to ask interested parties, I will take careful note of them.

[Baroness Goudie]

Will the Government consider fining Eurostar for letting in trafficked people, as happens with airlines?

[Earl Attlee]

My Lords, I think the noble Baroness is referring to the controls imposed on airlines where the passenger does not have the correct document. I am confident that Eurostar will not willingly allow someone to be trafficked. However, we need to understand that this is an activity of those involved in organised crime who are extremely skilful at achieving their ends.

Motion to Adjourn

Moved by

[Baroness Stowell of Beeston]

That the House do now adjourn during pleasure until 2.33 pm.

[Baroness Stowell of Beeston]

My Lords, I thank all noble Lords for adhering to the speaking time limit. Perhaps I may take this opportunity to apologise to the noble Lord, Lord Rogan, for interrupting him inappropriately.

Motion agreed.

14:30

Sitting suspended.

Scotland Bill

Thursday 2nd February 2012 Lords Chamber

Committee (2nd Day) (Continued)

14:33

Amendment 22

Moved by

[Lord Foulkes of Cumnock]

22: After Clause 14, insert the following new Clause—
“Variation of student fees according to origin of British students
In Part 2 of Schedule 5 to the 1998 Act, under Head L (miscellaneous) at the end insert—
“L8. Variation of student fees according to origin of British students
The setting of student fees for students from England, Northern Ireland or Wales studying at Scottish universities at rates different from those for students from Scotland studying at Scottish universities.Interpretation“Fees” has the meaning given by section 41 of the Higher Education Act 2004.””

[Lord Foulkes of Cumnock]

My Lords, it is my pleasure to move Amendment 22, which would prevent the Scottish Executive and the Scottish Parliament from imposing discriminatory fees on students at Scottish universities who are resident in England, Wales or Northern Ireland. The noble Lord, Lord Forsyth, has a similar amendment, Amendment 24. I must insist that he tabled it quite separately from my amendment and without any collusion whatever. I am saying this because his off-the-cuff comment earlier about the roadshow of the “toxic two” has been picked up north of the border and is already causing some interest. Both amendments were tabled with the same purpose.

[Lord Forsyth of Drumlean]

This is the first recorded occasion when the Scottish media have paid attention to anything that was going on in this House.

[Lord Foulkes of Cumnock]

I think that things are moving up the scale, although they are taking some time to do so. We are making a little bit of an impact there now.

I want to make it clear that in moving the amendment I am conscious of the sensitivities in relationships between Westminster and Holyrood, and between the UK Government and the Scottish Government. We have found in many of our discussions that this is a sensitive area in which we have to tread very warily, and I would hesitate to say anything that suggested that the UK Parliament was imposing its will upon the Scottish Parliament.

I say that having been a Member of the Scottish Parliament for four years. A number of noble Lords who have participated in these proceedings have also been MSPs—including the noble Lord, Lord Steel, who was Presiding Officer, the noble Lord, Lords, Lord Selkirk, Lord Watson and others who have participated, and, of course, the noble and learned Lord, Lord Wallace, the Minister who is to reply. Those of us who have been in Holyrood are aware of those sensitivities and we move with caution.

However, this Parliament has some responsibilities. The action of the United Kingdom Government in imposing very high fees precipitated this issue in the first place. I know that this is one area where the noble Lord, Lord Forsyth, and I might not totally see eye to eye. I am very pleased to see present the noble Lord, Lord Sutherland, who was a distinguished vice-chancellor of my old university, Edinburgh—not when I was a student, I hasten to add; he is not nearly that old, and neither am I. His experience and deep knowledge of the university sector will be very helpful, and that demonstrates some of the value of this Chamber.

We also have a wider responsibility for the European Convention on Human Rights and the equality legislation, as epitomised in the Equality Act. We therefore have to bear some responsibility for and take some interest in discrimination and equality. What has been not just proposed but agreed by the Scottish Executive and Scottish Government is tremendously unfair discrimination against students from England, Wales and Northern Ireland who go to Scottish universities. It really is quite disgraceful. It is astonishing, when you think of it, that students from Lisbon, Madrid or Berlin will all get in free to Scottish universities, but students from Belfast, London or Cardiff will have to pay fees.

[Lord Sewel]

Does the noble Lord recognise the supreme irony in the Scottish Government’s position? On the one hand, they are arguing for independence, but the policy they are pursuing can be carried out only while they remain members of the United Kingdom. If they achieved independence within the EU, they would not be able to have this pernicious policy.

[Lord Foulkes of Cumnock]

My noble friend, who was a distinguished administrator and academic at the University of Aberdeen—he was vice-principal—has put his finger on one very important matter. In fact, he has taken away a major part of my speech. Never mind about that. It is a massive irony, as my noble friend said, that the Scottish Government are able to impose these discriminatory fees only because Scotland is part of the United Kingdom. If Scotland was an independent country, as the SNP wants, that Government would be unable to impose those fees. Students from England, Wales and Northern Ireland would be in exactly the same position as students from Poland, Germany or wherever in the European Union.

[Baroness Liddell of Coatdyke]

My noble friend is making a valid and important point, but there is another dimension to the issue. It is largely the Barnett formula, which taxpayers throughout the United Kingdom contribute to, that allows the Scottish Government to act in this way. We are discriminating against those taxpayers from England, Wales and Northern Ireland.

[Lord Foulkes of Cumnock]

My noble friend and former boss as Secretary of State for Scotland has just stolen the second plank of my argument, but she put it very well indeed. It is a serious matter, because the parents of potential students at Scottish universities from London, Belfast and Cardiff are paying money into the UK Exchequer and that money, through the Barnett formula, subsidises Scottish universities, whereas parents of students from Berlin, Lisbon or Madrid are paying nothing to the UK Exchequer. That is an astonishing position to take.

This has been recognised as an unfair anomaly and discrimination not only by Members of this House. Today's Glasgow Herald states that legal action is already being taken by Phil Shiner on behalf of Public Interest Lawyers. Let me quote directly:

“Lawyers will launch court action as early as next month to stop the SNP Government's controversial policy of enabling Scottish universities to charge English students up to £9000 a year in tuition fees while home students pay nothing, The Herald can reveal”.

That action is taking place, but how much better it would be if, instead of having to defend that action—in practice, defending the indefensible—the UK Government were to accept my amendment and the Scottish Government were to agree to stop that discrimination.

To quote from the Guardian—no, it was the New Statesman, which is even better than the Guardian—the point has been made that,

“The resentment felt by English students, who will soon pay the highest public university fees in the world, will further destabilise the Union”.

One wonders whether the First Minister of Scotland has an ulterior motive, because it is alienating people in England. Lots of people from south of the border, when they find out about that, say how disgraceful it is. I am glad to say that I have also been approached by lots of people north of the border who think it is disgraceful: students, parents and others who are really concerned.

The New Statesman continues:

“The growing disparity between the two countries is a reminder of the incomplete nature of Britain's constitutional settlement”.

That is absolutely right, and something that I propose to deal with in other amendments to the Bill and which I have raised elsewhere. It continues:

“The UK is now neither a unitary nor a federal state and its largest constituent group—the English—feels increasingly unrepresented. For too long, politicians have complacently ignored threats to the Union; they must now act to repair our disunited kingdom before it is too late”.

I say to that hear, hear. This may be being done for some positive reasons, but in my view, it is for ulterior motives as well.

I hope that we will consider passing the amendment. It is important that we send out a strong call from this Chamber, from Westminster, to the Scottish Parliament and the Scottish Executive that they should reconsider this. I must be honest: I know that one or two of my colleagues in the House of Commons, one or two here and one or two in the Scottish Parliament have had some reservations about me pushing ahead with the amendment. To them, I cite Claire Baker, who is the Labour spokesperson on education in the Scottish Parliament. When the order went through the Scottish Parliament, the Liberal Democrats and the Labour Members did not vote against it for interesting reasons. Claire Baker said:

“I remain to be convinced that the order provides the right answer”—

she did not believe that—

“but I accept that action must be taken. After this morning’s evidence I remain concerned about the introduction of a variable fee and the lack of regulation and access arrangements, and I have wider concerns about the £9,000 fee level that has been set. However, I will support the order, which I realise is important if we are to manage cross-border flow and protect student places. I will return to the fee level, the regulator and other issues of concern when primary legislation is being considered”.

So there is deep disquiet. People in the Opposition in the Scottish Parliament feel that they are being given Hobson's choice: they feel that they are being forced into this. Otherwise, universities, including my former university of Edinburgh, will be squeezed even further in their income and find it more difficult. The members of the Opposition in the Scottish Parliament have been placed in an impossible position by the sky-high fees imposed by the United Kingdom coalition Government and by the discrimination imposed by the Scottish Administration. That pincer movement is making it very difficult for people.

Finally, I return to the main point. Whatever the detail of the argument, whatever the facts and figures—I know that the noble Lord, Lord Sutherland, and others will give more facts and figures about what is happening in the Scottish universities—it is deeply disturbing that such blatant discrimination should be taking place against students and potential students from England, Wales and Northern Ireland. I hope that the House will send that message very strongly to Edinburgh today.

14:45

[Lord Forsyth of Drumlean]

My Lords, I speak to my Amendment 24. Just to make sure that people realise that the noble Lord, Lord Foulkes, and I agree only on some things, I respectfully remind him that it was the Labour Government who introduced tuition fees.

I remember that particularly well because the only time I have taken a Bill through this House was when the much missed late Lady Blatch was our Front-Bench spokesman. She was ill and asked me to take the Bill through the House. The rather splendid noble Baroness, Lady Ashton, who has sadly been taken from us to other duties, was leading on the Bill. I said to her, “Look, I have a problem”. There was an issue about gap year students having to pay more. I said, “If you will amend the Bill and allow for gap year students, I won’t waste your time and be unnecessarily difficult, but there is another thing I need you to do. I need you to help me to make sure that we do not get a vote on the principle of tuition fees”—which the Liberals were very keen to achieve—“because I'm being told by the powers that be in our party that we have to vote against tuition fees and most of the people on my side would be in the wrong lobby”. So we attempted to avoid having a vote because most of my colleagues rightly recognised that the future of universities depended on having tuition fees.

This is not a debate about the principle of tuition fees. Indeed, my amendment does not mention tuition fees. The Bill is about the exercise of power—we have taken back Antarctica; we are giving other things—and it defines the powers of the Scottish Parliament. The new clause in my amendment is intended to make clear that the Scottish Parliament is free to exercise its powers, but it cannot exercise its powers in a way that discriminates against people from England, Wales and Northern Ireland relative to people in other European states. That is the real wickedness involved in what is happening now: Greeks, Germans, Poles and French all get the same deal as the Scots, but English, Welsh and Northern Ireland people do not. When I say Northern Ireland people, Welsh people and English people, this is not about nationality but about the place where you live.

As I said to someone from the BBC the other day, “You work for the BBC. You get posted to Glasgow. You've got three children who are aged, say, 14, 15 and 16 and they want to go to university. You get rung up by the director-general and told that you have to move to Manchester. That could cost your children £100,000 in fees because they will no longer be eligible to go to some of the best universities in the country”—I declare an interest as a graduate of St Andrews—“such as St Andrews, Edinburgh or Glasgow for free. The moment you move to England, they will have to pay. This is just a complete nonsense. Of course, you could accept a job in Madrid, or Paris or anywhere else in Europe—but not in England, Wales or Northern Ireland”. It is an absurdity.

The real wickedness comes when you say in a reasoned way to Alex Salmond, “This is not fair”. The response you get is: “If Scotland is independent, the English will get the same deal as the Greeks, the French and the Germans”. That is not good enough. I hope that my noble and learned friend is not going to get up and give the same, lame arguments about how this is what devolution is about. No, it is not. Devolution is about making decisions in Scotland in the interests of Scotland. It is not about discriminating against people from the rest of the United Kingdom in a way which was never envisaged during the passage of the Scotland Act through this House.

I am sorry that the noble Lord, Lord McConnell, is not in his place. Last week, when we were discussing the Bill, he came up with a brilliant image when, in trying to explain the apparently irrational behaviour of the First Minister and his separatist colleagues, he said that it is a bit like tenants who want to get a move from a bad estate to another estate: the first thing you do is upset the neighbours. This is about upsetting the neighbours, and upsetting the neighbours it is. There is real anger about this.

I stood recently in a rectorial campaign in St Andrews—I only got 900 votes, which is actually not bad for a banker and a Tory these days. The winning candidate was very good indeed. I spent a week in St Andrews with the students. There you have, side by side, students working very hard, much harder than I ever did when I was at St Andrews, in a university which has been transformed. A third of the students are English, a third are Scottish and a third are European or international. The Scottish students will pay nothing. The fees are going up to £9,000 a year and it is a four-year degree, so that is £36,000 if you are English. The European students are paying nothing. They are all working side by side.

The other thing that struck me was that St Andrews just looks the same as it did—most medieval towns do. The restaurants and the pubs are the same. The students are certainly much more focused. However, whereas in my day there were no students working in the restaurants and the bars, there now are. They need to do so in order to make ends meet. It is quite divisive and wrong to have students from different parts of the United Kingdom faced with substantial borrowing and debt, or no debt, simply because of which part of the United Kingdom they live in. I believe that this is a deliberate policy to create anger. There is genuine anger and resentment, not least on the part of those students who feel that they are being given a better deal relative to their colleague than they perhaps deserve.

There is also anger on the part of parents. I suggested to someone who shall remain nameless who was at St Andrews with me that they might like to make a contribution to the university in its 600th anniversary year. She said, “Not on your life! Not while my children are not able to go to St Andrews without having to pay these enormous fees”.

So it is quite wrong. It would be entirely appropriate for the Government to restrict the powers of the Scottish Parliament so that it cannot operate in this way on any area of policy. As the noble Baroness, Lady Liddell, a former Secretary of State for Scotland, pointed out, the Barnett formula is extremely generous. The spending per head on education is about 20 per cent higher. It really is adding insult to injury to ask the English to send more money per head north of the border on education for the privilege of seeing their children treated less generously than people from Greece.

If the Prime Minister says that he will defend the union to the last fibre of his being, here is a test. I ask my noble friend to ask the Prime Minister to look at this, and ask him seriously whether we can go on allowing this to happen. This is very timely. Hitherto, the fees have been at levels of £3,000 a year, so it would be £12,000. Now they are going up to £9,000 a year, so it is a huge imposition upon these students and is building enormous resentment. I hope that my noble and learned friend will give this some consideration.

A third party is very angry about this: the universities. I am delighted to see in his place the noble Lord, Lord Sutherland, with all his experience of higher education in Scotland. The universities are the poor mugs who have got to set the fees with this difficult and divisive position for their students, and who take all the flack for its consequences. I am not going to press this to a vote today, because I want to give my noble and learned friend time to think about it and come back at a later stage, but I hope that he will take it seriously. This is the first opportunity that we have had since the introduction of tuition fees and top-up fees to debate this matter. It is widely resented around the country. It is a deep, deep injustice which needs to be put right.

[Lord Sutherland of Houndwood]

My Lords, I thank my two preceding speakers for their kind remarks. I run the risk of being drawn into this love-in going on across the Benches and I do not especially wish to be, so I hope that they say something nasty about me at some point.

I support the two amendments. Neither is perfect, and they need a bit of further thought, but I particularly welcome their pairing. Amendment 22 illustrates very well the general principles implied in Amendment 24, which are what I wish to speak about. As a declaration of interest, I am a former principal of Edinburgh University. I have links with most of the universities that I will talk about, but that of course includes many south of the border that are our friends, colleagues and competitors. There is a view across the whole country on this which must be taken it account.

The problem, which has been well illustrated, is clearly the differentials in treatment of students from what is now called the RUK group—there is now a formal title in Scotland for the “rest of the United Kingdom”—and students from the European Union. This is disproportionate. The differential between them and the way in which they are now being separated out is unjust and is not something that we happily live with on either side of the border, or in the university system across the country.

This division started quite some time ago. There was a trickle of complaints when fees were originally raised through this mechanism but they were small sums of money, comparatively speaking. This trickle grew into a pretty strong stream when the target hit £3,000 and is now a vast torrent. There will be much irritation and anger, and a great degree of thinking twice about where to study as a result of this policy.

The figures in question come out of a series of decisions taken on the administration of higher education which started in 1992, when the two funding councils were separated. On grounds of consistency, I have to say that I opposed that separation. Indeed, if you read the relevant speech of the Member for West Lothian in the other place at the time, you will see that he quotes me as being against it. That was because I began to worry then about the kind of separation that will take, and has taken, place. The two funding councils are proceeding well according to their own administrative arrangements. I do not blame the accounting officers or members there. They have financial settlements imposed upon them by government, not least by this House.

The division that occurred then has grown in practice, perhaps in a way in which none had envisaged and certainly in a way that most of us regret. The issue today is not whether you can turn the clock back completely. Devolution has happened; I accept that. The issue is whether we want the kind of devolution that produces this sad differential between students from different countries and different areas within the United Kingdom.

14:59

[Lord Sewel]

Was the noble Lord as uncomfortable as I was when reading the justification of some leaders of Scottish universities for imposing the highest fees? They used the argument that it was necessary in order to prevent Scottish universities being swamped by English students. I found that deeply uncomfortable.

[Lord Sutherland of Houndwood]

I am very uncomfortable with that. On the other hand, there were reasons, which I shall come to now, for the level of fees being set as it is.

The policy of the Scottish Government and the funding council is such that in the period from last year to next year a gap of roughly £40 million will have opened up in the funding of those universities. The University of Edinburgh, much to its credit—as the noble Lord, Lord Sewel, will be pleased to hear—recruits a large number of students from south of the border, and they contribute significantly to the life of that university. That is part of the way in which the university focuses on its United Kingdom, let alone its international, obligations.

With regard to that gap of £40 million, I know it is put about by some that the universities are raiding the coffers of the rich English and that is why they are setting the fees as they are, but that is not the case. A funding gap has been created. I pay tribute to the University of Edinburgh because I believe that at the same time it has put in place the most generous and best scheme for helping students who could not otherwise afford it to come from south of the border. It is a very good scheme which I think could be emulated by others.

Where did this fees level come from? It came from two decisions. One was the coalition Government’s decision to increase the fees to £9,000, although I have to say that they were following the example of their predecessors. This is not an argument about whether there should or should not be fees. I resist the temptation to get into that, although I have strong views on it. That was one element of what created this division. The other is that the Scottish Parliament, through its allocation to the funding council, deliberately created a gap in the funding of Scottish universities—it is in its accounts—of over £50 million. It created that gap and in effect instructed the universities to raise the money from students coming from the rest of the United Kingdom. That being so, there is a dual responsibility here, and it simply illustrates the point made more eloquently by the previous speakers about how we can sometimes set out on a constitutional road that leads not just to unintended consequences but to very unfair and unacceptable consequences as many of us see them.

Students from the rest of the United Kingdom, or RUK—it has a name, which is a sign of how well entrenched it is—will have to live with students whom they know will be paying none of the £36,000 that they are paying. The case has already been given of at least two such universities. It is sometimes suggested that the £36,000 is unnecessary. That is not true. If we are to compete with the best in the United Kingdom, that is the carefully estimated sum of money that has to be put back into the budget of individual universities, and they have set their fees accordingly.

I should mention that I was rather pleased to hear in the Antarctic debate mention of the University of Edinburgh. It has very strong research interests there and I am glad that we are protecting those interests. The only other interest that I could think of Scottish universities having in the Antarctic was if a very strong strain of clever penguins started applying to universities. They would have to decide what fees to charge the penguins, but happily we are unlikely to face that problem.

To summarise, an indefensible gap has arisen. I am not sure that either of these amendments would deal with it completely, but it is time for further thought. Do we want our university community, which shares knowledge and a passion for truth, to be divided within the United Kingdom financially in this extrovert way—a way that will distort human behaviour and the ways in which applications to universities are made? I hope not.

[Lord MacGregor of Pulham Market]

My Lords, I am delighted to be able to follow the noble Lord, Lord Sutherland. He referred to the eloquence of the other speakers but, if I may say so, he has spoken with great eloquence, great authority and great experience on this subject.

When I woke up this morning, I had not been expecting to take part in this debate but I was working in my office and at other meetings in the House and happened to bump into my noble friend Lord Forsyth over a sandwich. Having realised what the subject is, I am only too delighted to be able to intervene. I hope to speak on the subject briefly because many of the points that I wanted to make have been made already.

I was born and brought up in Scotland and, like my noble friend Lord Forsyth, I went to the University of St Andrews. I listened to the point that the noble Lord, Lord Sutherland, made about the contribution of English students to the University of Edinburgh. I recall very clearly that one of the great richnesses during my time at St Andrews came from the university having so many students from America and elsewhere but particularly from England. I believe that that had a very beneficial effect in widening my horizons.

Subsequently, of course, I came to England and for many years represented an English constituency, and I shall say something about that in a moment. The noble Lord, Lord Foulkes, referred to the sensitivity of dealing with the Scottish Parliament on this issue. However, I think that there is no more sensitive an issue than this question of tuition fees for parents who live in England but who, like me, may have been born in Scotland and who hope that their children will go to Scottish universities. From knowledge gained from my friends and particularly from my constituents in Norfolk, I can say that the resentment is very great.

I know how this issue arose originally—the Scottish universities had to accept the ruling that EU students had to be treated the same as those in Scotland but that did not apply in the United Kingdom. That argument is not understood by any parent or potential student who wants to come to Scotland. I hesitate to mention the Barnett formula but the noble Baroness, Lady Liddell, has done so already. I was going to look at the Barnett formula in a slightly different context. I have always—since first being in government—been a strong opponent of the Barnett formula, but that is another story. However, there is no question that Scotland benefits greatly from the formula. One way of putting this resentment right would be to meet the fees required from English students coming to Scotland through the extra expenditure that the Scottish Parliament has received from the Barnett formula.

I want to say one other thing on this subject. For many years, I tried to persuade my constituents and many others in Norfolk and elsewhere of the unfairness to those in England—very often receiving grants from local authorities and so on—of the Barnett formula in treating Scotland so much better. I could never persuade my constituents of the importance of this case because it seemed remote from them. However, the one issue that they really understand and which creates resentment is when they want one of their children to go to the Scottish university that they attended but they find that the financial penalties are such that they are not able to do so. That is what comes home to them. I used to get a lot of representations from people in this situation and I could never convince them otherwise; I could only agree with them. That is why I strongly support these two amendments.

[Lord O'Neill of Clackmannan]

I am very pleased to follow the noble Lord, Lord MacGregor. There seems to be an outbreak of unity in the Chamber today and we should be grateful to the noble Lords, Lord Forsyth and Lord Foulkes, for their amendments. The amendments may have imperfections but the point has been well made that devolution was to be about the extension of democracy, greater accountability and, ultimately, greater transparency. Through that, we hoped that there would be a measure of equity. In fact, what we have here is a classic example of the inequitable character of our constitutional arrangements.

I voted very reluctantly in favour of the principle of charging fees—I was probably one of the last converts from the Whips’ arm-twisting process and what have you. However, I am not sure whether I would have voted in favour of the principle of fees if I had thought that it was going to be abused in the way that it is being abused by the Scottish Government. From the very speedy but quite succinct analysis given by the noble Lord, Lord Sutherland, of the accounting procedures adopted by the separatist Administration in Edinburgh, it is quite clear that they are out to discriminate against the rest of the United Kingdom and to prevent young people coming to our universities. If they do come, they will be making a disproportionate contribution to the finances of these institutions.

It is certainly the case that some institutions for historical reasons, such as Edinburgh, are probably better endowed and better able to introduce generous systems of support. There are a number of institutions that one might almost call marginal in their financial capability to provide the kind of support—

[Lord Sutherland of Houndwood]

I thank the noble Lord for giving way. The money that Edinburgh will put forward for needy students comes from the total fees package that is taken in. Clearly, they test alumni—looking around the Chamber, I remind Members of this—for additional funds to do that, but a significant part of the money comes from the fees that they charge.

[Lord O'Neill of Clackmannan]

The point I was going on to make is that some of the newer institutions are less well endowed in the round, have smaller numbers of alumni for a start, and are discriminated against in another way. Those institutions are not as attractive and are therefore unable to benefit from students from the rest of the UK or from abroad. Even within the system there are difficulties and inequities. There are imperfections in the two amendments, and the Government have to take the point that this Chamber is not happy with the way in which things have developed, nor with the unfairness that has been inflicted on children and families across the country. One part of the United Kingdom is able to benefit from devolution in this way and have free education at undergraduate level, while others in the same country are discriminated against when they come to Scotland to study or are deterred altogether, which I think is even more significant. Our universities and our Scottish institutions make a unique contribution to the mix.

I have had this discussion in my own family with my sons. They say, “We’re not really interested in going to Oxbridge; we think Edinburgh and Glasgow are perfectly adequate to provide us with an education”. One could argue that they might have got the emphasis a wee bit wrong, but that mood still prevails. However, we do not want children to grow up in some kind of Caledonian closet, where they will not be open to other relationships and cultures. My younger son, who went to Glasgow, learnt a lot from being in the same halls of residence and playing in the same football team as young men from Northern Ireland, whose cultural and social background was dramatically different from his own. Such people will not necessarily have the chance to come to our institutions and the Scots who go to our institutions will not have their company.

Money is at the beginning, the middle and the end of this situation, but there are other dimensions. When we started on the road to devolution, we wanted, as I said earlier, to create a better United Kingdom, not a United Kingdom that was inequitable because of the cynicism of separatists in Scotland who wished to use the mechanism at their disposal to discredit the concept of the UK. This is an opportunity for us to avoid that and to ensure that they can be exposed for the charlatans they are when they argue in favour of free education for some but not for the rest, not because they do not happen to be Scottish but because they just happen to live in the wrong part of the United Kingdom.

15:15

[Lord Maclennan of Rogart]

My Lords, I should declare an interest. I have recently been appointed as a trustee of the development trust for the most recent university in Scotland—indeed in Britain—the University of the Highlands and Islands, which has achieved its status at the hands of the Privy Council in the last year.

I cannot rest today on the arguments about university fees and the rights and wrongs of charging some. I know that opinion is deeply divided about that and that some of those involved in universities have made strong cases for substantial fees. Something as inequitable and discriminatory as this must exercise everyone in this House and in the country. What has been done by the Scottish Administration is deeply divisive.

The first successful advocacy that I indulged in as a boy was to persuade my father not to send me to an English boarding school but to keep me at the Glasgow Academy. I remember trying to persuade my parents’ friends that they should take part in that advocacy because I got so much benefit from their generation and not just from my own generation. After that campaign had been won and I was allowed to remain at school in Glasgow, I remember that I received a letter from the right honourable Hector McNeil, who was at the time Minister of State to the Foreign Secretary, Ernest Bevin, saying, “Well done. You have chosen a good school and you have done the right thing, but I must tell you that there is a great deal to be said for thinking about going to a university in another part of the United Kingdom and I would encourage you to look at Oxbridge”. I did and I went there.

In the case of my own offspring, my son, the situation was reversed. In the House of Commons I represented a remote constituency and it was decided that my son should go to school in London where I would have a better chance of seeing him. In turn, he went to Edinburgh University. I wonder whether he can be described as a Scot or not? As the rules stand, it is all about where he lives. It seems to me that this is a shocking determination. In my son’s case it did not happen. He went to Edinburgh. Pupils who are at the University of the Highlands and Islands, Edinburgh University or wherever are now faced with grossly unequal circumstances. It does not encourage people to move around and gain new educational experiences in a new and different part of the country.

The University of the Highlands and Islands in particular will seek to attract people to study there who are engaged in many different, discrete and sophisticated scientific and other studies. I fear that this will have an adverse impact on those studies. I noted the reference to the University of Edinburgh studying Antarctica. Cambridge University is promoting similar studies. People may consider that they might as well go to Cambridge as Edinburgh if they have to pay the same fee. This higher educational process will not benefit the younger members of our society if people are discriminated against in this way.

The arguments have been very well deployed in this excellent debate. I ask my noble and learned friend to take away these arguments and discuss them with senior colleagues who are in a position to do something. It is important that there should be a direct dialogue before Report not only with our senior Ministers but with representatives of the Scottish Executive. The public utterances that have been made by the First Minister, Mr Salmond, have been utterly deplorable in their discriminatory effect, and calculated to stimulate hostility among those who are not Scots. That is not how our Government should be managed. Although I cannot expect the Minister to give an entirely positive answer today, I hope that when the Bill comes back he will have taken these views into account and come up with proposals that right this serious wrong.

[Lord Sanderson of Bowden]

My Lords, I strongly support both my noble friend’s amendment and that of the noble Lord, Lord Foulkes. I should perhaps declare an interest. I have two grandchildren, both aged 17. One is at school in Scotland and has been offered a place at Cambridge. The other is at school in England, lives in England and has been offered a place, conditional on her A-level results, at Edinburgh University.

[Lord MacGregor of Pulham Market]

I may have a potential interest that I did not declare. I have grandchildren living in England who may wish to go to a Scottish university.

[Lord Sanderson of Bowden]

In my case, no doubt everyone will realise that the grandfather will have to pay. That is one part of it. I strongly support what my noble friend Lord Maclennan said when he asked my noble and learned friend on the Front Bench to take this matter away, consider it carefully and come back with an answer that will give us some satisfaction.

The question was asked earlier in this very good debate: do we want this sort of devolution? For my money, I think not—and I certainly know by the amount of disquiet in Scotland over this matter that there is concern that this must be sorted out. It should not be within the power of the present Scottish Government to exercise power in this way, with discrimination writ all over it in big letters. We must think of another way of dealing with this. I realise that legally they are quite correct, but morally they are not. If they want to try to divide the United Kingdom, this is the way to go about it—and frankly I dislike it intensely. It goes to the heart of the argument over whether the United Kingdom should be broken up. I sincerely hope that the two amendments in this group will start a debate in this House and outside it, as my noble friend Lord Maclennan said, and that the Minister will listen carefully and realise the anger that exists up and down the country over this discriminatory measure.

[Lord Browne of Ladyton]

My Lords, it is a pleasure to follow the noble Lord, who put the nub of the issue facing the Government and the Committee very forcefully and clearly. Once more in this Committee, the noble and learned Lord is caught in a pincer movement between my noble friend Lord Foulkes of Cumnock and the noble Lord, Lord Forsyth of Drumlean. Yesterday I was in conversation with a Scottish broadcast journalist, who shall remain nameless. He suggested that they were rapidly becoming the Chuckle Brothers of Scottish politics. No doubt as our deliberations go on the divisions between them will become apparent, although many of us know where they lie in any event.

In raising this issue, my noble friend Lord Foulkes brings to your Lordships' House a matter that is perceived by many in Scotland and, indeed, in this Committee, to be a cause of great unfairness. There can be no doubt about that. There are large numbers of people in Scotland who do not think that this is a fair way in which to treat students from England, Wales and Northern Ireland, and for good reason, because Scottish people pride themselves on the progressive nature of their thinking and on their values. Instinctively, they think—and they are right—that it is unfair that students who come to Scotland from England, Wales or Northern Ireland are treated differently from Scottish students or students from the European Union. The difference is obvious. We have the benefit in our deliberations of the summary by the noble Lord, Lord Sutherland, of the short history of this difference.

It is undoubtedly true that the fact that there are different systems of student support and student fees in different parts of the United Kingdom means that there is discrimination. While it has existed for some time, that discrimination has, by recent decisions of the UK and Scottish Governments, been driven to new heights, and consequently it is now much more apparent than it was. As my noble friend’s amendment and the support for it show, it raises real issues about whether within the United Kingdom we can continue to operate such a discriminatory regime without addressing its inherent unfairness. To that extent, my noble friend is to be congratulated because he focuses his arguments very sharply, and it is clearly right to debate them, as the contributions we have heard thus far make clear.

Whether it is appropriate to have this amendment in this Bill is a matter that the Minister will no doubt address. In one view, having devolved education, including higher education and student support, to the Scottish Parliament, it is a matter for it, and we should live with the consequences, which should be reflected in the political circumstances in which it operates. Whether there is some strong constitutional reason for leaving this to the Scottish Parliament, the amendment proposed by my noble friend raises real practical issues, and the debate that took place in the committee in the Scottish Parliament on the order that set out the specification of these fees encapsulated that. These practical issues will be reflected in the budget for Scotland. I do not think that any noble Lord who has contributed to this debate seeks to set the budget for the Scottish Government or, indeed, the Scottish Parliament but, effectively, that might be what we were doing if we dealt with this issue.

[Lord Forsyth of Drumlean]

My amendment is different from that of the noble Lord, Lord Foulkes, and we will no doubt come to it, but I have a simple, straightforward question for the noble Lord. Do the Opposition think that as part of the devolution framework, of which they were the midwives or architects, it is right that the Scottish Parliament should be able to exercise any power which results in discrimination against people resident outwith Scotland relative to people in the rest of the EU? It seems that there is an important principle here, of which fees are an illustration.

[Lord Browne of Ladyton]

I have not been long in your Lordships' House, but I have learnt to be wary of the noble Lord’s simple questions. It is a pretty straightforward question and, when we were sharing responsibility with the people of Scotland for the devolution settlement, it was certainly never envisaged that this discrimination against young people in relation to higher education would be a consequence. I do not think anybody imagined that. In fact, I suspect that had the issue of internal discrimination in the United Kingdom been raised, we would have set our face against it in the original Act.

However, the politics of Scotland have moved on and, as the noble Lord, Lord Sutherland, and my noble friend Lord Foulkes spelt out very clearly, decisions have been made about student fees and the way in which we support higher education, and they have had consequences. One of them has been a significant potential financial disadvantage to Scottish universities, which could have untold detrimental consequences in the longer term for their ability to hold on to the best of their staff or to provide the level of education that they pride themselves on having provided, in some cases over centuries. That was an issue that had to be addressed and those who have looked at the way in which this discrimination has come about and how it was debated in the Scottish Parliament will know what the issues about funding are. It may be possible to address them in other ways but I do not know the detail of that. I am not supporting the way in which they have been addressed here. It is right that we should debate them but I am not entirely certain that this is the right way to do it.

15:29

That brings me to the noble Lord’s amendment, which is complementary to my noble friend’s amendment but is much wider because it seeks to establish a principle that is not related to a particular area of policy. Instinctively, I support that idea. However, as the noble Lord spoke to his amendment I was trying to think of another area of activity where this discrimination has surfaced. The only place I could see it had previously surfaced in my experience in Scotland was in relation to my own profession, the legal profession, and the rights of audience.

It is so long since I practised law in Scotland that I am not entirely sure of the current position. But I remember that, when I did practise there, there was discrimination about the recognition of the qualifications which I held and the rights of audience that I had both north and south of the border. I was conscious that we lived within an EU framework where those qualifications and rights of audience should be respected throughout. I know that that situation persisted for some time—I am not sure what it presently is—on these islands.

However, I have to say that it was not just the Scots who were responsible for this situation. All the individual jurisdictions of these islands practised discrimination in that area in recognition of those professional qualifications in the legal profession. This discrimination, in principle, predates devolution. It persisted through devolution and was practised, to my knowledge, not just by Scots against others but against Scots legal professionals for a period of time. It may not have continued and I am not entirely sure of the position.

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord and I am completely out of my depth because I have never really understood the legal profession. Is he saying that a situation existed where there were rights of audience that were unique to Scots that would not apply in England, but would apply to the French, the Germans and everyone else in Europe? Is that the position? If that is the case, rather like me I am sure he would believe in the single market and, advancing that, would regard this as anomalous.

[Lord Browne of Ladyton]

The noble Lord raises a point of principle. My point was that, to my knowledge, there was one other offence to that principle. Others may know of others. I do not know whether that situation persists because I am not up to date enough. I know that there was a period of time when advocates from the European Union had a right of audience in Scottish Courts as a consequence of their own domestic qualification, whereas, as I remember it, that did not apply to English advocates and vice versa. Indeed, I have many friends in the legal profession who qualified again, as it were, in England in order to be able to appear before English courts. But if that no longer persists, this area in relation to student fees is the sole area of discrimination that I can drag up from my own experience. Whether in those circumstances it is right to deal with this with some amendment of principle, I would have to consider. If the only issue relates to student fees, perhaps there is another way to address that apparent inequity and it should be thought through.

Going back to my noble friend’s amendment, I wish to make a point which has already been alluded to; namely, the real inequity of this current discrimination of regime is that these decisions are beginning to affect the kind of students we get in Scotland from England, Wales and Northern Ireland. The continuation of our union, which I support, depends substantially on our young people interacting. The differentials in the cost of education weigh heavily in decisions that our young people are taking about where they wish to be educated, as we have heard from those who are fathers or grandfathers of young people who have made those sorts of decisions. We are in danger of creating a Scotland in which our indigenous Scots student population will only meet the children of rich English, Northern Irish and Welsh families. At the same time, less well off children in other parts of the United Kingdom will be denied the benefit of a Scots university education. I do not think that can be right. The question that faces this Committee is the best way to address it.

I am pleased to say that on this occasion I do not speak for the Government. I am glad to have been able to make a short contribution to the debate. It has been enhanced by what we have heard from the noble Lords, Lord Sutherland, Lord MacGregor, Lord Maclennan and Lord Sanderson, and my noble friend Lord O’Neill. I do not think that the noble and learned Lord can be in any doubt about the mood of the Committee on allowing the scope for discrimination to persist in the framework of the Scotland Act. I will listen carefully to what he has to say and I am certain that we will find a way of returning to this issue on Report once we have had a chance to take in his response.

[Lord Selkirk of Douglas]

Would the noble Lord care to bear in mind that the Law Reform (Miscellaneous Provisions) (Scotland) Act removed the discrimination which he claimed with regard to rights of audience for solicitor advocates? I also understand that my noble and learned friend Lord Mackay of Clashfern was instrumental in ensuring that the same thing happened south of the border.

[Lord Browne of Ladyton]

I am grateful to the noble Lord for that intervention. I am a member of a profession that prides itself on discrimination—at least certainly in its history it did—between those who had rights of audience in the higher courts and those who were historically perfectly capable of making the arguments but were denied. That division was addressed in the way the noble Lord has suggested. I am absolutely certain that the discrimination I was alluding to, which was based more on geography than on someone’s membership of certain branches of the profession, has now been addressed. I am not entirely sure whether it has or not, but the purpose of introducing it was not to take us down a cul-de-sac, but to explore the issue of whether the interest in principle of the noble Lord, Lord Forsyth, was a necessary way of redressing a situation that went beyond student fees.

[Lord O'Neill of Clackmannan]

Perhaps my noble friend would remember that we do not need to have a solution that covers every form of discrimination. He should not allow the waters to be muddied by the somewhat unhelpful intervention of the noble Lord, Lord Forsyth, by way of a question. It is quite clear that on the educational issue here, this Committee is united. That is the message which should go up the channels of the Labour Party to those who will think about considering another amendment at some stage and whether or not it could be supported. Let us be clear: we just want something on fees and on the discriminatory effect of that issue.

[Lord Browne of Ladyton]

I am grateful to my noble friend for his clarity of presentation. I do not think that anyone, having heard the debate or on reading it in the future, as people will, could be in any doubt about the mood of the Committee over this issue. That message will get through to those who need to hear it. In a sense, my noble friend was saying much the same thing as I was. I am not sure whether this is an issue which as a question of principle actually goes beyond the question of student fees, but if it does, then perhaps it needs to be addressed in the way suggested by the noble Lord, Lord Forsyth.

[Lord Forsyth of Drumlean]

Perhaps I can help the noble Lord. It is great to have a rebuke from the Opposition Benches. I was actually thinking that it would be easier for the Opposition to accept a point of principle in respect of devolution rather than accept a restriction on the policy freedom that was implied for the Scottish Parliament. I was just trying to be helpful.

[Lord Browne of Ladyton]

I am pleased to have been able to give the noble Lord another opportunity to be helpful to the Committee, and at this point I will conclude my remarks.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the Committee owes a debt to the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth for introducing this debate. As the noble Lord, Lord Browne, said, there can be no doubt as to the mood of the Committee on this issue, and views were expressed with great passion and sincerity. I think that I have some common ground with the noble Lord, Lord Browne, but I want to read his remarks carefully. I accept the sympathy that he offered me.

As the noble Lord, Lord Foulkes, said in moving the amendment, we have to be conscious of the sensitivities of relationships between the Westminster Parliament, the Scottish Parliament and the respective Governments of the United Kingdom. He said that we ought not to appear to be imposing something on the Scottish Parliament, albeit that is what the impact of the amendments would be.

I am in a slightly more difficult position for a number of reasons, not least because it would not be appropriate for me as a member of the UK Government to express an opinion about policies of the Scottish Government. Others have had the freedom to do that, which I could perhaps envy, but it would not be appropriate for me to do so other than to make some more general points.

My noble friend Lord Forsyth said that the debate should not be about the principle of tuition fees; on the other hand, it leads to a question of choices. A choice was made back in 1999-2000 by the Scottish Parliament not to charge tuition fees for domiciled Scottish students, whereas a choice was made by the Westminster Parliament under the previous Administration and continued by the present Administration that there would be tuition fee charging. The problem, which has given rise to such passion, would not have arisen at all if the United Kingdom Parliament had made a different choice.

Likewise, if I may pick up the point made by the noble Lord, Lord Sutherland, the Scottish Government had a choice as to whether they should fund universities in the way in which they have done, with the fee structure that they are proposing, or to make more money available to the funding council, as did the Administration which I was proud to serve back in 2004. Then, we made the deliberate choice, from among all the priorities competing for government funding, to give additional funds to the further and higher education sectors in Scotland. That in some respects is what devolution is about: allowing the Scottish Government to make these choices. A part of what this Bill is about is making sure that there is greater accountability for the way in which money is raised. That is the background against which we should look at these issues.

Two strong issues emerged in the debate: one was the £9,000 fees for students from England, Wales and Northern Ireland, and the other, perhaps drawn out more in the amendment of my noble friend Lord Forsyth, related to the fact that European Union students do not pay fees if they study in Scotland. I fully recognise why the latter is seen as being very unfair to students in the rest of the United Kingdom. I make no bones about the fact that it is a result of European Union law, which, if it was to be changed, would require action far beyond this House.

[Lord Forsyth of Drumlean]

No.

[Lord Wallace of Tankerness]

European Union law could not be changed unilaterally. I know that my noble friend proposes in his amendment how we might address it, but that is not the same as changing European Union law, which I am sure he would be the first to accept.

When the package of free tuition for Scottish domiciled students was introduced in January 2000, my noble friend Lord Stephen—or Mr Nicol Stephen MSP as he then was—as the deputy Minister for Enterprise and Lifelong Learning, indicated that the proposals were produced based on the best advice available given the risk of challenge by other EU nationals. He went on to say that he was disappointed with the legal advice and would like it to be different, but that was the position in terms of having to operate within the confines of European Union law. I would not wish to suggest who gave that advice because I am sure it was sound, but given that we had to operate within the confines of European Union law, that was how we got into that position. Let us not be under any illusion that it was something that the then Scottish Executive did because they wanted to do it. It was because they were obliged to do it.

15:45

Something that has not been fully understood until now is that the same tuition fee was charged for students from Scotland, England, Wales, Northern Ireland or the European Union, except that in the case of Scotland and European Union students, the Scottish Government paid it. It was not that it was a different rate. It was the same rate across the board and the Scottish Government paid it for Scottish and EU students. Those coming from England, Wales and Northern Ireland had their own arrangements for funding and for meeting the fees. Of course, we now see a difference. There is a difference in the new order which, it was pointed out, was not opposed by any party in the Scottish Parliament when it ultimately went through, which set a differential fee.

It is wrong to suggest that this difference has suddenly come upon us. I appreciate that it is starker, but it cannot be said that it was unknown at the time of devolution. Anyone who went through those years particularly remembers the 1999 Scottish election campaign. The issue of whether there should be free tuition for Scotland domiciled students with a key one in that campaign. It was a key issue in the negotiations that led to the formation of the coalition Government.

The principle was accepted at the time that Scotland and the Scottish Parliament could operate on a different basis from that which would operate in different parts of the United Kingdom. That principle was accepted and what we are saying today is not that the principle has changed but that the numbers have changed so we should be re-examining the principle. I recognise why that is the case. At the core, my noble friend said, “Do not come away thinking that this is a matter of principle: that once you devolve powers you have to live with what is devolved”. But there is an important principle. It was one that was not challenged when the distinction was first made and therefore we must be very careful as to the grounds on which we are now challenging the principle.

The noble Lord, Lord Sutherland, and my noble friends Lord Forsyth and Lord MacGregor, all mentioned the importance of the quality and the excellence that we want to see in Scotland's universities. We want to attract students to Scotland's universities because of the quality and the excellence of teaching and research. I can think of some educational institutions south of the border that would also claim to have excellence. A student resident in England choosing between Oxford and St Andrews will face the same fees whichever they choose. Perhaps St Andrews is an exception because the four years would all be at £9,000. Some Scottish universities have capped fees at £27,000, bearing in mind that there is a difference in the three-year or four-year course. That is a matter for the universities. But the residency does not affect the price of their higher education. They have the choice of going to an English university. It is not as if they are suddenly not going to be paying fees if they go to an English university which they suddenly have to pay if they go to a Scottish one. It is important that we put these issues into that kind of context.

[Lord Sutherland of Houndwood]

There is, however, one significant difference. Many of us come from a generation where we had to live at home when we went to university, which I did intermittently for a few hours each night. But that is not a choice available to students going from England to Scotland, so they cannot economise on the cost of university education by making a choice that others can, for example, who live in London.

[Lord Wallace of Tankerness]

They can actually make the choice to go to London and possibly not pay any more or any less.

[Lord Sutherland of Houndwood]

Clearly the choice is driven then purely by financial constraints rather than by educational aspirations.

[Lord Wallace of Tankerness]

I agree and accept that, but we are perhaps kidding ourselves to think that those students in Scotland who chose to go to a university very close to home were not also taking into account financial considerations; albeit that they were fortunate to have so many universities of considerable quality on their doorsteps. If you came from the part of Scotland that I came from, nowhere was on the doorstep. I pay particular tribute to my noble friend Lord Forsyth for what he did when he was Secretary of State for Scotland in giving an impetus to the idea of the University of the Highlands and Islands, which, as my noble friend Lord Maclennan has indicated, has now come to fruition. It has taken a somewhat long time but it was worth it. I know how keen he was on it. It has made higher education available on the doorsteps of many people who otherwise would not have had that opportunity.

I never particularly like, and do not think this debate lends itself to, technical issues, but the amendment from the noble Lord, Lord Foulkes, is deficient in a number of ways. It reserves to the UK Parliament the power to make variations in fee levels between different parts of the United Kingdom. I am sure that it is not really quite what he was intending. I acknowledge and appreciate that my noble friend Lord Forsyth has sought to couch this in a way that is more related to an issue of principle rather than focusing on tuition fees. However, as the noble Lord, Lord Browne, pointed out, with the possible exception of rights of audience, you would be hard pushed to actually think of any other circumstance where this principle might arise. I will clarify the position on rights of audience. I clearly recall that it certainly was the case. I know of many practising advocates now at the Scottish Bar who are also at the English Bar—and some, indeed, at the Northern Ireland Bar—as well as some solicitors trained in Scotland who now work in firms in England. It does seem easier at a practical level to go between jurisdictions than it was hitherto. The point of my noble friend’s amendment is very much focused on tuition fees, which he did not attempt to disguise in speaking to his amendment.

However, one should always be aware of the law of unintended consequences. One possible consequence of his amendment is that the Scottish Government could address this by paying the tuition fees of every student from England, Wales and Northern Ireland. My noble friend says that would be fine. Obviously it could be budgeted and other things would have to give way to fund that. However, it would suddenly mean that it would be hugely cheaper for students from England, Wales and Northern Ireland to attend universities in Scotland. My noble friend says that is ridiculous, but of course that would be the consequence.

[Lord Forsyth of Drumlean]

That is the position for Greeks, German, French, Italians and everybody else in Europe—that it is considerably cheaper for them to come to Scotland, where they get a free education relative to England. It is a ridiculous argument.

[Lord Wallace of Tankerness]

It is not a ridiculous argument at all, because it is very difficult if you are a student coming from Greece, where English might not necessarily be the language in which you would more readily study. It is far simpler if you are coming from Carlisle to go to Edinburgh than it would be to go to Birmingham. I can assure my noble friend that when tuition fees were increased in England and variable fees were brought in, in around 2004, there was clear evidence—which I was presented with as the then Minister with responsibility for higher and further education—that that would have a considerable impact on cross-border flow, and that was something that we had to address. Indeed, we did address it.

[Lord Flight]

I point out to the Minister that Ireland charges extremely low tuition fees at universities. This has not led to a huge increase in the number of British students going to Irish universities.

[Lord Wallace of Tankerness]

The point I was making was that there was clear evidence, which we were looking at in about 2003 or 2004, in an overall review we did of higher education at that time in Scotland, that a differential where Scotland was much cheaper than England, Wales or Northern Ireland would have a considerable impact. I totally subscribe to what noble Lords have said in this debate—that the essence of many of our universities, the advantage of them and the thing that gives richness to student life, is the fact that you are shoulder to shoulder with people from many different backgrounds, nationalities and cultures. I subscribe to that overwhelmingly. But it is naive in the extreme to think that, if university tuition in Scotland was free for students from England, it would not have some quite material effect on the numbers applying.

[Lord Sutherland of Houndwood]

I thank the noble and learned Lord for giving way and I promise not to intervene again, but there is a further argument in this area that is relevant. If Scotland is not charging fees for students who come from the continent but England is, there will be a displacement of students from continental bases to Scotland. Last time I did a back-of-the-envelope calculation, European Union students were costing Scotland between £80 million and £90 million a year. That could grow as an unintended consequence of the policies. I am not questioning good faith or decisions taken constitutionally in the right way; I am just saying that we really are creating consequences, and that is another one that we ought to look at very carefully.

[Lord Wallace of Tankerness]

I think that actually supports the argument that I was just making—that if the numbers are going up from European Union countries, a fortiori the numbers would increase from other parts of the United Kingdom. That is something that would have to be addressed. I do not think that my noble friend has actually thought that through.

Just as the noble Lord, Lord O’Neill, said to the noble Lord, Lord Browne, that he might have to talk to the leadership of his party before the matter comes back at the next stage, so my noble friend Lord Forsyth said that I should draw this matter to the attention of the Prime Minister and my noble friend Lord Maclennan asked that we think about this before Report stage. I do not think that it would be a service to the House if I did any other than say that obviously we have to reflect on the very strong views that have been expressed in this debate.

[Lord Maclennan of Rogart]

I am grateful to my noble and learned friend for what he has just said, but the principle that my noble friend Lord Forsyth has advocated is one that could conceivably be important—not in the light of our previous experience, because that kind of discrimination has been anathema in the United Kingdom, but in establishing this precedent, which one can see being extended to other spheres. That might include the domicile of people taken into care because of illness in Scotland. If they happened to be domiciled in England, they might be subject to much higher charges, and that by law. There is a very important principle here, which I hope will not be confined just to education, although education is the immediate reason why we need to discuss these things.

[Lord Wallace of Tankerness]

I recognise the principle that my noble friend is enunciating. That is why I said that we do not know what the consequences would be of the amendment proposed by my noble friend Lord Forsyth. It goes right to the heart of the architecture of the Scotland Act—to Section 29, which makes certain legislation not law, as I am sure the noble Lord, Lord Sewel, remembers well from the days of the passage of the Bill in 1998. To add this as a principle of devolution when its possible consequences have not been thought through is something that I would not wish to accede to without much greater thought as to what its implications might be.

I conclude by making that commitment but I also have to conclude with the other principle—the principle of devolution. Inevitably, if you devolve matters, Governments may not choose the course that you would wish to see. It is probably not unfair to say that Mr Tony Blair was not entirely happy when he learnt what the Scottish Government were proposing in 1999 about abolishing tuition fees and bringing back more generous student grants, but he accepted that that was one consequence of devolution. If we pursue a line that has been sometimes advocated today, we run the risk of undermining the purpose of devolution. Differences in policies can develop, and we will not always agree with those differences. But if we constantly fight against the differences and produce ad hoc legislation if something comes up that we do not like—even if we do not like it with a considerable passion—we must do so with great care, because there is a principle of devolution that could be well undermined if we do that.

16:00

[Lord Foulkes of Cumnock]

I will deal with that very point. I started by saying very much what the Minister has said in his last few words. I am very aware of that sensitivity. I will come back to this in a few minutes, but I am really grateful to the Minister for agreeing to take this away and reflect on it. When he expresses the view to his colleagues, I hope he will make it clear that this is an all-party, cross-bench, overwhelming, united, passionate and powerful message from the House of Lords. We have had people from all the parties, with lots of graduates from Scottish universities and other universities, all powerfully talking in one direction. That is a message to get over: we may be non-elected, but some of us have been elected in other places for long periods and have a lot of experience. I hope that message will get through.

I will make two points before I come to my last general point. First, on unintended consequences that arise, the noble Lord, Lord Forsyth, said this was a question of domicile, not nationality, which is absolutely right. Let me tell the Committee of one of the unintended consequences. Early last year, a Tory Peer—I will not name him—told me that he already knows of relatively well-off people who are buying up flats in Edinburgh to establish domicile there, so that they will not have to pay fees. That is the kind of thing that happens—and no, it was not the noble Lord, Lord Forsyth, saying that. Just as others have said, those who are relatively well off might pay the fees while others can get what I might call a domicile of convenience, so as to not pay them. They will eventually sell the flat, or whatever, and manage to reap some profit on that.

My second point is on what the noble Lord, Lord MacGregor, and, again, the noble Lord, Lord Forsyth, said about the Barnett formula. There is an amendment tabled for later in this Committee from my noble friend Lord Barnett himself—I call him Lord Formula—to have this revised. He has wanted that done for some time. We know that, per capita, it is exceptionally generous to Scotland. That is why the Scottish Government and the Scottish Parliament have been able not just to keep free higher education but free prescriptions and free personal care as well, all of which is building up tremendous resentment south of the border. There is a feeling here that the taxpayers south of the border are paying for all those better services. We heard that expressed in a previous debate in this House by Members from England, and it is a very strongly held feeling.

I urge the Minister to think about the consequences. There is of course another way of dealing with this, which is how Mike Russell, the Education Minister in Scotland, wants to deal with it. He wants to end the anomaly by stopping allowing European students in for free. He wants to go to Commissioner Vassiliou and say, “Let's have this changed so that we don’t have this obligation”. I do not think he will succeed in that—I think it will be impossible for him to succeed in that—but let us think of what he is trying to do. He is trying to make it financially difficult not just for English, Welsh and Northern Irish students but for European students to come to Scottish universities. My noble friend Lord O'Neill spoke about the Caledonian closet. Can your Lordships imagine Scottish universities reverting to what they were centuries ago when Glasgow, for example, had just students from around the Glasgow area? They would become narrow, introverted and isolationist universities and not in the old tradition of Scottish universities. I hope that we will not move in that direction.

The Minister was genuinely helpful and I hope that he will take it away, as he said, and discuss it. I listened very carefully to my noble friend Lord Browne. I think that he supported me in principle and that he will take it away to look at in more detail. I will help him in that task. The noble Lord, Lord Forsyth, asked the Minister to talk to the Prime Minister about it. Can I add the Deputy Prime Minister, just to make sure that it is all squared with both parts of the coalition? Will the Minister also talk to the Scottish Government about it and say that there is a strength of feeling, there are anomalies and there may be other ways around it? Will he ask them to consider the options for ending an unfair and discriminatory arrangement? We have some time until Report stage to do that. We are not going to finish this Committee stage until late in March so we will probably not get to Report until April.

I hope that the Minister will go away and talk sincerely to them. I know that he is busy with other things, but I hope that he can take some time out to talk to people about this anomaly, which clearly upsets so many people, not just in this Chamber but, far more importantly, outside it, and try to find a fair and equitable solution. On that basis, I shall withdraw the amendment.

[Lord Forsyth of Drumlean]

My Lords, I thank the Minister for his response to the debate which was very generous, giving what a beating he was subject to during it. I always used to say of my late learned friend Nicky Fairbairn that if I were on a murder charge I would have him defend me. In the absence of Nicky, given that my noble and learned friend made a good job of a pretty limited set of arguments, that accolade may fall to him. We do not need to think about the future to see what is going to happen in the future. Only this week the UCAS figures were published. They show, surprise surprise, that more Scottish and European students, but fewer English students, are going to Scottish universities.

I feel a bit alarmed by the interests that were declared by my noble friends Lord MacGregor, a former Secretary of State for Education, and Lord Sanderson. I suppose I ought to declare a grandson, whom I am taking to the rugby on Saturday.; he will be supporting England and I will be supporting Scotland. He is only 13, but I would not like to think that his choice of university should be in any way limited by where he lives in the United Kingdom.

I do not normally disagree with my noble friend Lord Flight, but he has made some remarks about Irish universities. I ought to declare another interest: my youngest daughter went to Trinity College, Dublin. When she decided to go there, I thought that it would cost me an arm and a leg but it was free because there are no fees in Ireland. The consequence of that has been that a number of English students go to Trinity College, Dublin, but the university limits the number that it will accept and the result is that now you need to get four As, I think, in order to be able to go there. A distortion is being created not just in residency or wealth but also in the ability of the students. Only very able students from Europe are able to get into these universities.

I do not know whether or not it is legal to have a quota, but it is a remarkable argument. “Independence in Europe” was the slogan, and the whole idea of Europe—which, I confess, has been distorted—is that it is an open, single market where you have free movement of labour. That is the attractive part of the idea. It seems to be a complete distortion to argue that we are in favour of a single market throughout Europe but not within the United Kingdom. That argument will lead to fragmentation, which is precisely why Mr Salmond and his friends support it.

I will not detain the Committee; we will return to this. However, I want to pick up a couple of points that the Minister made. It is not right that an English student wanting to go to a Scottish university will to have to pay the same fees, because in Scotland we have four-year degrees. Personally, I would be very sad to see the end of the four-year degree system, but that may also be an unintended consequence of the distortion that has been created.

The Minister, speaking from the Dispatch Box, said something which absolutely horrified me, and which I hope will not be the general policy of the Government. He said that it would not be appropriate for him to comment from this Dispatch Box on the policies of the Scottish Government. Excuse me—this is part of the United Kingdom. The devolution Bill—the Scotland Bill—gave powers to the Scottish Parliament to exercise, but the powers to legislate on these matters remain with us. It is entirely appropriate for Ministers at the Dispatch Box to comment on the policies of the Scottish Executive—not Government, Scottish Executive—particularly if they affect the people of the rest of the United Kingdom. That is the kind of principle that I would expect to hear being enunciated by Mr Salmond and the separatists. It is the duty of this House to look at the consequences of the Scottish Executive’s policy and their impact not just on Scotland but on the rest of the United Kingdom. I hope that my noble friend will take this away and consider it very carefully indeed. There has not been a single speech in support of the current position. I believe that if we were to divide the Committee and people knew what they were voting for, there would be a jam in one of the Lobbies and the Minister would be searching for tellers. This matter needs to be looked at very carefully.

The noble Lord and I did not confer on this issue at all. We both tabled amendments because we are both aware of the feeling on this matter. I put down my amendment as an amendment of principle because it seems to me that the principle of devolution should be that policies which affect Scotland are made in Scotland and that the Scottish Parliament should be responsible for them, but that in so doing—this is an important principle—people in the rest of the United Kingdom should not be disadvantaged vis-à-vis other European Union citizens. If I had put down an amendment that said the Scottish Parliament should have the power to legislate in a way which discriminates against people in England, Northern Ireland and Wales but not other EU citizens, it would have been laughed out of court. That appears to be the position of the Government—that they are prepared to have a status quo of that kind.

I do not see this as being something that might have unintended consequences; it seems to me to be central to the whole philosophy of devolution. I find myself in a very surprising position in having to explain the philosophy of devolution as I have not been a strong supporter of it because I thought that it would lead to exactly the difficulties which we are now encountering. However, that is water under the bridge. If we are to maintain the United Kingdom, we have to make it work. Setting boundaries and a framework seems to me a more appropriate way of going forward than limiting the scope in particular areas of policy. But in whichever direction we go, we need to resolve this problem one way or the other. One way of dealing with it would be to say that the fees of those students who go from England to Scottish universities are picked up by the Department for Education and that the money is taken off the block grant to the Scottish Parliament. There is a whole range of ways of doing it. I think that would probably be the most provocative way of doing it. There are other ways of doing it but I urge my noble and learned friend and his colleagues to think carefully about the best way of doing it, perhaps as my noble friend Lord Maclennan said, in consultation with the Scottish Government. We cannot go on like this.

Amendment 22 withdrawn.

Amendments 23 and 24 not moved.

Amendment 25 had been retabled as Amendment 90A.

Amendment 26 had been retabled as Amendment 94A.

Amendment 26A

Moved by

[Lord Foulkes of Cumnock]

26A: After Clause 14, insert the following new Clause—
“Rail passenger services
(1) In Part 2 of Schedule 5 to the 1998 Act, section E2 (rail transport) is amended as follows.
(2) In the exceptions insert—
“Services for the carriage of passengers by railway which start and finish in Scotland, including the power to decide who will run such services, the provisions of the Railways Act 1993 notwithstanding.”
(3) In the interpretation insert—
““Services for the carriage of passengers by railway” has the meaning given by section 82 of the Railways Act 1993.””

[Lord Foulkes of Cumnock]

My Lords, I shall be very brief on this because I know that we have some of the most distinguished lawyers from Scotland waiting in the wings to talk about the Supreme Court. I am looking forward to hearing them do so.

This amendment was moved by my colleague Thomas Docherty in the Commons and has the support of the trade unions. It comprises a simple, technical new clause. Most people think that the Scottish Parliament already has the power to decide on the model for the ScotRail franchise, or for the franchise in Scotland. After all, it has to fund that franchise through its Ministers and it is responsible for the letting of the franchise. It is also responsible for funding the building of new railways in Scotland. We have successfully given greater powers to Scottish Ministers to do everything except determine the model of that franchise. I will not argue that a switch to a not-for-dividend model would necessarily be the best. The issue is that Scottish Ministers must let the franchise according to a privatised model. I am not saying that that is wrong; I am just saying that they should have freedom to decide what the model should be. I hope that noble Lords, particularly the Minister, will note that I am suggesting additional powers for Scottish Ministers and the Scottish Parliament, which would be welcome.

16:15

The Railways Act 2005 specifically bans a public body from acting as the franchise operator. Thereby, Scottish Ministers are banned from having a public body to deal with these matters. The only exception to that is if that body is the operator of last resort—as is now the case with the east coast main line. The proposed new clause would give Scottish Ministers the right not only to fund the railway, to let the franchise and to monitor its performance—all of which they have to do anyway—but to determine the shape of the model involved. This might well result in a privatised model, such as the one that exists on the ScotRail franchise, or perhaps a co-operative model. Ministers might ask Transport Scotland to run the franchise, or they might set up a new company called “Scottish Passenger Transport” to do so. It gives them that flexibility.

This proposal was not considered by the Calman commission because it involved a small technical change. I hope that the Minister will give serious consideration to the amendment. It was divided upon in the Commons because—I and Mr Docherty believe—it was misinterpreted as being a proposal to bring ScotRail into public ownership. That is certainly not the case. The only power that the amendment would give is freedom to Scottish Ministers to decide what the model should be, as well as all the other aspects.

[The Earl of Mar and Kellie]

My Lords, one of the curiosities of the current rail franchising process is that while the British Government and, presumably, the Scottish Government cannot offer to run the railways directly, there is no opposition to foreign national Governments—through, for example, Deutsche Bahn or SNCF—running franchises in the United Kingdom.

[Lord Boyd of Duncansby]

My Lords, I am grateful to my noble friend for tabling the amendment, which was debated in the other place. It seeks to rectify what appears to be an omission from the Scotland Act 1998 and subsequently the Railways Act 2005, which devolved significant powers over the ScotRail franchise, including its funding and licensing as well as responsibility for new rail lines for the network, yet neglected to devolve the power to determine the model of that franchise. Of course, it would not be appropriate to devolve responsibility for cross-border services, but that is not what the amendment seeks to address. It is clear that the amendment relates to services that begin and end in Scotland.

When this matter was debated in another place, as my noble friend indicated, we seemed to get side-tracked—if that is not an inappropriate way of putting it—down a spectre of renationalisation, which was not the purpose of the amendment. The Parliamentary Under-Secretary failed to address the central issue that the amendment poses regarding whether it is consistent with the spirit of the devolution settlement that the power to determine the nature of a discrete Scottish franchise, in relation to which the Scottish Government already have considerable responsibility, should be reserved.

I ask the noble and learned Lord the Minister to say what the position is in Wales and, more fundamentally, why the Government believe it is necessary and proper to retain powers to determine the franchise model of a self-contained Scottish rail service where the franchise is granted by the Scottish Government.

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, gave a fair analysis or description of what his amendment is intended to do. The noble and learned Lord, Lord Boyd, said that this might just be an oversight in the original arrangements. The noble Lord, Lord Foulkes, said that it was too small a matter for the Calman commission. I think that quite a significant change is proposed; it is not a small matter at all. The fact that I do not recall any representation on or consideration of it as part of the Calman commission may say something about whether there is widespread support for it.

The noble and learned Lord, Lord Boyd, asked why legislative competence has not gone hand-in-hand with executive competence. I think I am right to say that executive devolution was not present in the 1998 Act, but was subsequently negotiated between the then Scottish Executive—I think that Mr Henry McLeish took a role in that—and the Labour Government. The agreement reached was one of executive devolution. The Labour Government did not think it right at that stage to extend legislative devolution, and that continues to be the position of this Government. The Government are committed to maintaining a GB-wide national rail network which is publicly specified and funded in the public interest but which is provided by the private sector.

It is important to recognise the substantial executive devolved powers which Scottish Ministers have in relation to railways. They include giving general guidance to the Office of Rail Regulation, giving notice of their requirements for the outputs of the rail network in Scotland and the level of public funding available to the Office of Rail Regulation and publishing a Scottish railway strategy. They also have power to designate, let, fund, manage and enforce Scottish franchises and publish a statement of policy on franchising; to set fares; to publish a code of practice protecting the interests of disabled passengers; to appoint a member of the Passengers’ Council; to give financial assistance to any person for the purpose of developing Scottish railways; and to publish freight grants schemes for Scotland. Indeed, they have considerably more powers than that. Of course, the Scottish Executive have also taken considerable initiatives in building and constructing new railways—my noble friend Lord Mar and Kellie is probably a personal beneficiary of the railway from Stirling to Alloa—so substantial powers are already available.

However, as I said, we believe that devolved powers are best exercised within a coherent GB structure, as provided for under the Railways Acts 1993 and 2005. It is essential that the overall regime for the provision of rail passenger services and their regulation remains a reserved matter. It would not be sensible to run the railway in such a way that the Scottish Parliament through legislative devolution could overturn the framework that governs the operation of passenger services in Great Britain as a whole.

The noble and learned Lord raised the question of Wales. I will certainly confirm the position, but the fact that we wish to keep a GB structure means that there is no legislative devolution to the Welsh Assembly.

[Lord Foulkes of Cumnock]

What I am proposing would not overturn the structure of the railways in Great Britain as a whole, as the Minister just said, but is merely filling a little gap in the model, the kind of franchise that can be agreed by the Scottish Executive and the Scottish Parliament. It is a small but important addition and it would not disturb the rest of the railways in the United Kingdom. I hope that he will give it some serious consideration.

[Lord Wallace of Tankerness]

I think it would, if we take it that GB includes Scotland. If Scotland could have a different model from that operating in the rest of Great Britain, that would amount to a material change. We believe that the right balance is in place. It was a balance struck not by this Administration but by the previous one, and not just as part of the original legislation but as one for which specific consideration was given for a Section 30 order. The arrangement struck the right balance and I urge the noble Lord to withdraw his amendment.

[Lord Foulkes of Cumnock]

On every previous occasion, I have said that I am really grateful to the Minister for listening carefully to the arguments and being sympathetic, accepting some of the arguments and going away and looking at the amendment. In this case, I am disappointed. I could have gone on at much greater length arguing the case, but I have some concern for my noble friends the eminent lawyers from Scotland and we need to get on to the issue of the Supreme Court. However, this is an important issue. The trade unions feel strongly about it. I know that the Scottish Government would welcome this change. It seemed to have some support in the House of Commons, and would be a coherent arrangement.

The noble Earl, Lord Mar and Kellie, is a very quietly spoken Member of this House and always speaks exceptionally briefly, but in this case his point was really quite a remarkable Exocet. In his brilliant intervention, he said that whereas there could be no public ownership so far as Britain was concerned, in relation to United Kingdom interests, French, German or Dutch railways—all three are publicly owned—would have no problem at all in buying into and taking over this franchise. That is a serious anomaly. It might be best to have some kind of United Kingdom or Scottish structure different from the current ScotRail structure to deal with it. I hope that the Minister will give further consideration to this between now and Report so that we can avoid a rather longer debate then. Nevertheless, I beg leave to withdraw the amendment.

Amendment 26A withdrawn.

Amendment 26B

Moved by

[Lord Sewel]

26B: After Clause 14, insert the following new Clause—
“Nuclear Power
In Part 2 of Schedule 5 to the 1998 Act, under head D4 (nuclear energy) omit—“ExceptionsThe subject-matter of—(a) Part I of the Environmental Protection Act 1990, and(b) the Radioactive Substances Act 1993.””

[Lord Sewel]

My Lords, I hope that we can get through this in under 12 minutes and break the Foulkes record. Right at the beginning, I will come clean: this is purely a probing amendment, which means we can totally disregard the detail. I can only apologise if some poor civil servant somewhere has spent hours drafting notes on Part 1 of the Environmental Protection Act 1990 and the Radioactive Substances Act 1993. I am sorry, but that was my way of getting the issue on to the agenda.

Quite simply, the issue is my concern whether, at a time when energy security is one of the greatest challenges that we face, we have the appropriate legislative framework to enable the implementation of a strategic British energy policy. It would be totally inadequate to try to deal with the issue of energy security by fragmenting policy so that you have English, Scottish and Welsh energy policies. The task that we face is too great for that sort of small, narrow-minded approach.

Schedule 5 to the 1998 Act reserved virtually all areas of energy policy: electricity, oil and gas, coal and nuclear energy; there are a number of exceptions and they are in the original Act. There has also been a degree of executive devolution since then. The reservation of energy was done quite deliberately in 1998, with the view that strategic energy policy was best devised and implemented at a British level. The point that I want to explore with the Minister is whether we are still capable of implementing a strategic British energy policy. This is where I use the peg of nuclear: we have to take account of the specific contribution that nuclear power can play. We have heard from the Scottish Government that they will not be allowed to build new nuclear power stations in Scotland, and that is a major factor in the debate on energy policy. Is the Minister satisfied that the Scottish Parliament and Scottish Ministers have powers which would enable them to prevent the construction of nuclear power stations in Scotland and, if that is the case, is it really possible or credible to think in terms of British energy policy?

16:30

[Lord Maclennan of Rogart]

My Lords, I support the thoughts lying behind this amendment. When approached recently by an American company which indicated the desire to establish a small nuclear research plant in Scotland to develop nuclear power on a small scale, I was rather shocked to be advised by the Department of Energy and Climate Change that, because of the planned powers for the Scottish Parliament and the declared expression of intent to allow no nuclear developments in Scotland, this approach, which would have brought significant employment to Scotland, was to be denied.

I know that there are different attitudes to nuclear power in different parts of Scotland. I know, for example, that my noble and learned friend’s former constituents were always a little unhappy about what was happening across the Pentland Firth at Dounreay. Equally, my noble and learned friend will recall the satisfaction of my former constituents that nuclear power was being developed and researched on the north coast of Britain as part of a strategic policy on energy development. It is rather unfortunate, to say the least, that the good will of those in that particular area towards nuclear power is to be overlooked and that the possibility of replacement in the research field is to be denied when the Dounreay nuclear establishment is finally decommissioned.

My comments, like those of the noble Lord, Lord Sewel, are probing. It appears that the original intentions of devolution in respect to energy policy have been effectively stymied by matters which will not necessarily proceed to be related directly to the strategic questions. Having policies for different parts of the United Kingdom in relation to energy, which transcends even existing national frontiers, is almost certainly unwise. Indeed, I think that when the Prime Minister came back from the European Council the other day, he talked about enlarging the scope of the European Union in respect of energy policy. Therefore, we seem to have two standards here—one relating to how we deal with Europe and one relating to how we deal with internal matters—and I think that these anomalies need to be sorted out. However, as I said, this is merely a probing inquiry.

[Lord O'Neill of Clackmannan]

I should like to follow my colleagues on this issue because for some time I was chairman of the Nuclear Industry Association. My connection with that organisation has now been terminated, so I do not have to declare an interest but I still have great affection and respect for the industry.

It is certainly fair to say that an amendment of this kind has to be probing in character because, to be realistic, we do not really want to face the prospect of a planning challenge at this time on nuclear matters. I do not think it would be reasonable to say that there is fantastic demand in Scotland for Hunterston C and D being constructed at this time. However, by 2015 or 2016, we will have the large plant directive in place and, therefore, Cockenzie power station, which is relative small, will probably be closed and we will also have the prospect of Longannet, which is the massive linchpin of Scottish power generation, operating under severe constraints as a consequence of the large plant directive.

Torness will probably carry on until 2025, given likely extensions if the safety codes are met. Within the next eight years investment decisions will have to be taken as far as replacement base load generation is concerned. It ought to be made as clear as possible what restraints there are on the possibility of the planning powers of the Scottish devolved Parliament being constrained or changed or being ignored, if that were possible. If energy is a reserved power, does the power to frustrate through the planning process necessarily enable a Scottish Parliament to deny the people of Scotland and the United Kingdom the contribution that a power station on the scale of Torness could offer?

It is suggested that the nuclear industry is somehow alien to Scotland, that we do not have anything to do with it, and the plutonophobes, in their separatist windmills, forget that probably as much credit has to go to James Clerk Maxwell as anyone for the development of nuclear power. Through companies like the Weir Group and through a variety of other groups like Renfrew-based Doosan Babcock, the nuclear power industry is very vibrant and strong in a lot of areas of Scotland. Although it does not enjoy the weekend press releases that we get for the somewhat immature, renewable technologies—immature in the sense that they are barely proven and barely out of the laboratory—in its hands will lie the economic success of Scotland.

It is true that we will still have gas-fired power stations, but it is quite likely that, if the carbon capture and storage technologies are developed, they will try to apply them to that form of generation as well. If that happens, it will severely restrict even the capability of the gas-fired power stations to make a proper contribution to our energy needs. I make the point that, although today it is not an important issue, we still have some time to go before a Torness replacement has to be considered. There will be uncertainties about the continuing generating capability of our main stations by 2015. Not all of us are quite as optimistic about the contribution, 24/7, base load in character, that can be made at present by renewable power stations.

Therefore, it is important that an issue of this nature is afforded some clarity. That is why I am very grateful to my noble friend Lord Sewel for raising it. We are not asking for the earth to move or anything like that; we are merely asking for some clarity from the Advocate-General on this question.

[The Earl of Mar and Kellie]

My Lords, is this not a matter of Scottish democracy? I suggest that in 2016, the Labour Party in Scotland needs to come forward—providing it is prepared to put up with the description of being nuclear Labour—with the type of policy that will presumably be substantially different from the policy continuing to be put out by the current Scottish Government.

[Lord Browne of Ladyton]

My Lords, it is a pleasure to follow the noble Earl, Lord Mar and Kellie, who asked a legitimate question. If there are advocates for the policy, they should be heard in Scotland and the Scottish people should make their decision. Nobody could criticise my noble friend Lord O'Neill of Clackmannan for being a shrinking violet in this regard. He speaks with authority and obvious knowledge about the benefits of nuclear energy and the role that it should play in the mixed energy economy of Great Britain. I accept the noble Earl's challenge and thank my noble friend Lord Sewel for giving me the opportunity to outline, in a couple of minutes, some of the basic points about a single GB energy market in which nuclear energy will play a part.

The existence of a single GB energy market is manifestly to the benefit of Scotland and to the rest of our island. It allows the sharing of resources, risks and rewards. The development of renewable energy capacity in Scotland depends largely on substantial support from that market. As noble Lords said, energy is in the main a reserved matter under the Scotland Act. However, through the exercise of devolved power over the planning system, the current Scottish Government are able to prevent new nuclear plants being built in Scotland. They have said that it is a matter of ideology and that that is what they will do.

As noble Lords heard, Scotland produces a not insignificant proportion of its electricity through the nuclear power stations at Hunterston and Torness. I have noted in my short time in your Lordships' House the development of the concept of declaring an interest. I do not declare this as an interest, but it may be of interest to Members of the House that as a student I was involved, as a McAlpine fusilier, in building the Hunterston B power station. I remember being handsomely rewarded for my work and benefiting from the great advantage that in those days, students did not pay any tax on a substantial part of their income. Therefore, in a small way I contributed to the energy security of our country. Since Hunterston is a nuclear power station, it will be a lasting legacy—although perhaps not a legacy of which everyone would be proud.

At times of peak demand, Scotland, which produces a significant amount of energy, imports electricity generated by nuclear power stations in England. Under a separate Scottish energy policy—God forbid that there should ever be one—that would have to continue, in order to maintain base load power and to prevent the lights going out in Scotland. However, both Hunterston and Torness will come to the end of their operating life in the next few years, as we heard—although one or other may continue, depending on the safety case. The position of the SNP Scottish Government on nuclear energy appears contradictory. They seem happy to import the energy from England, but impose a policy of no nuclear energy in Scotland on ideological grounds. This does not seem to be a point of principle or ideology. It is a political issue in Scotland that works in their favour in the mean time, but will not in the longer term.

The noble and learned Lord the Minister is not here to answer for the Scottish Government, and I do not ask him to. However, perhaps in his closing remarks he will indicate what he understands the position to be in relation to the extension of the life of nuclear plants currently operating in Scotland. I have reason to believe that there will be a positive response from the Scottish Government to the life extension of these stations, for the obvious practical reason that there is no substitute for them in the offing. If that is the case, where does the ideology lie? Where is the point of principle if the life of these plants can be extended but new ones cannot be built?

I am conscious of the time, and I do not want to detain the Committee unnecessarily. I have made the points I want to make. I am grateful to my noble friend Lord Sewel, who has provided the Committee with a good opportunity to remind itself of the one irrefutable fact: the benefit of a single GB energy market. The whole of Britain, including Scotland, benefits from this market. It makes no sense to break it up, and we should continue to try to protect that market.

16:45

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Sewel, for introducing this issue. I take the point he made that the pegs on which he hangs it are perhaps not details that he wishes to address. Rather he wishes to open up the wider issue of energy policy and, more specifically, nuclear energy policy with regard to the devolution settlement.

That said, it is important to note that decommissioning gives rise to important issues regarding substantial amounts of nuclear waste. We do well to remember that decommissioning the civil nuclear legacy and managing the radioactive waste produced as a result is a joint project across the UK, and the Nuclear Decommissioning Authority reports to both Scottish and UK Ministers, although it is funded centrally by the UK Government through DECC. There have been good working relationships on that point.

The noble Lord, Lord Sewel, raised the more general question about energy policy. The balance that has been struck, with the United Kingdom in the driving seat with regard to UK energy policy, is one that we endorse. The Calman commission received a number of representations on these issues and indicated that it believed that a UK-wide approach is essential to ensure a continuing national supply, that international targets and obligations are met and that consumers have access to a competitive and modern energy market. It concluded that the current arrangements remain appropriate and provide a balance between powers appropriately exercised at devolved and reserved levels, although it encouraged proper engagement between the two Governments.

The UK nuclear energy policy has been set out in the national policy statement EN6, which was ratified in 2011. I am grateful that my noble friend the Minister at DECC is in his place. He will, no doubt, correct me if I get any of this wrong. This national policy statement provides for enough sites across the United Kingdom for a significant build programme going forward for new nuclear sites. I do not know the detail of the extension times for currently operational nuclear power stations. Scotland currently has five nuclear power stations, three of which are in the process of being decommissioned—Hunterston A, Dounreay and Chapelcross—and two are still operational—Hunterston B and Torness. There is also an MoD site, as my noble friend Lord Maclennan will know, the Vulcan Naval Reactor Test Establishment adjacent to Dounreay, which ran a test reactor for the nuclear submarine programme. I will get confirmation to the noble Lord, Lord Browne, about the remaining lifetime of those plants.

I think it is fair to say that the noble Lord perceives that there may be some inconsistency in the view taken by the Scottish Government with regard to extension as opposed to their stated view with regard to new build.

[Lord O'Neill of Clackmannan]

I may be of some small assistance here. It is my understanding that life extension would be the responsibility of the Nuclear Installations Inspectorate. A safety case has to be advanced. Were that to have construction implications that required planning, that might cause a wee bit of a problem, but the basic case has to be satisfactory in the eyes of the Nuclear Installations Inspectorate.

[Lord Wallace of Tankerness]

I am sure the noble Lord is absolutely right. At the core of this—maybe not the right word—at the heart of it is the safety case, which would be determined by the independent Nuclear Installations Inspectorate. The noble Lord raised the point, which we will come on to, about other issues leading to issues about planning. It is not only planning because in 1999 there was executive devolution that transferred to Scottish Ministers powers under Section 36 of the Electricity Act with regard to giving permission for power stations in excess of 50 megawatts, and that would include any future nuclear power stations.

I perhaps interpret the concerns to include how that would operate. To be fair, more generally in planning it probably makes sense to have planning powers. In the debate on the then Scotland Bill, the noble Lord, Lord Sewel, said that,

“an Act of the Scottish parliament containing provisions about water pollution from coal-mines or dust from open-cast coal-mining would affect the reserved matter of coal-mining. If the courts were to apply a literal approach, they could hold that these provisions related to the reserved matter and would therefore be beyond the legislative competence of the Scottish parliament. This would make a nonsense of the devolution of pollution control”.—[Official Report, 21/7/98; col. 819.]

There is some good sense that there should be planning considerations.

I should also perhaps draw to the attention of the Committee a decision in the Outer House, Court of Session, last year by Lord McEwan in a petition of Dulce Packard and others for judicial review. He said:

“The best guidance is the Lewis case (the mixed redevelopment at Redcar on Teesside). It is quite clear from the case that the Minister’s position is quite different from someone holding a judicial or quasi judicial office. All the Minister has to do is to consider genuinely the inquiry report and the objections”.

Clearly, we have not yet had any application. But he went on to quote from the Lewis case and the judgment of Lord Justice Rix.

“So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question”.

It would be wrong to speculate what would happen if any company applied for planning permission and was turned down. It is a high test, which I think Lord McEwan made clear. Nevertheless, he went on to say that the,

“test is applicable, the fair minded and informed observer must be taken to appreciate that predisposition is not predetermination”.

But evidence of predetermination might be relevant.

I had better stop there because one never knows when one might find oneself having to go down that path. In saying this, I hope I can give some assurance that the Government believe that the balance in the Scotland Act is right. As I have indicated, the national policy statement, which was ratified last year, provides for enough sites across the United Kingdom for a sufficient build programme going forward for nuclear sites. With these remarks, I hope the noble Lord feels that he has probed successfully. I am afraid that we have taken twice 12 minutes, but it has been a useful debate and I hope that he will withdraw his amendment.

[Lord Sewel]

I thank all noble Lords who have contributed. In reply to a point made earlier, I am not advocating a nuclear power policy for Scotland. I am advocating a British energy policy to deal with the issue of energy security. It cannot be done at the level of the individual component parts of Great Britain. We need to work together to have a policy covering the whole country.

I think that we are very reluctant to go too far on the planning point. But the noble and learned Lord will remember that the vires test in the 1998 Bill that left the House of Commons was not the same as the vires test that became the Act. Let me put it this way: that change was in part as a result of discussions that were very close to the type of discussion that we have had today. I beg leave to withdraw the amendment.

Amendment 26B withdrawn.

Clause 15 : The Scottish Government

Amendments 27 to 29 not moved.

Amendments 30 to 39 had been withdrawn from the Marshalled List.

Clause 15 agreed.

Clause 16 agreed.

Clause 17 : The Lord Advocate: Convention rights and Community law

Debate on whether Clause 17 should stand part of the Bill.

[Lord McCluskey]

My Lords, this debate is scheduled to finish at 7 pm, which gives us slightly over two hours. That is unfortunate because on a Thursday afternoon, particularly when the House does not sit on the Friday, there are few Scots to be found after this hour, and I fear that even some of those who are smiling at me now will shortly depart for trains and planes to take them north to what no doubt is important business. I have tried to make my contribution by withdrawing 12 of the amendments I had down on the Marshalled List before the debate today, but it is a pity that we lost an hour at the beginning of the day to the debate occasioned by the Leader of the House having to deal with issues of privilege in another place.

I am quite certain that we are all agreed that Clause 17 will have to go, so I need not spend too much time on the detail, but I want to say something about the background. Unfortunately, because of the grouping of the amendments, for what I understand are good technical reasons, we have to deal with a large number of quite different matters all at the same time, so I am afraid that I shall have to rise to my feet more than once in order to make separate submissions in relation to several different matters.

Clause 17 was added in another place at the Report stage. No explanation about it was given at that point, although the Minister and the Opposition said a few words a little later at Third Reading. The history of the matter is this. The Scottish judiciary first raised issues in relation to the exercise by the Supreme Court of its jurisdiction, which had been conferred in a late provision that was added to the Scotland Act 1998. Calman did not deal with it, but the Advocate-General for Scotland wisely appointed an expert committee under Sir David Edward and others, including the noble and learned Lord, Lord Boyd, to deal with the matter. The committee went on to produce an excellent report so far as it went—I believe that we came to a logically better conclusion than can be shown in Clause 17, and I think the Minister accepts at least some of the points that have been made in relation to that.

The Report stage to which I have referred was taken on 22 June or thereabouts. The first report of the review group, which I had the honour to chair, was published on 24 June, so at that point we had had no opportunity to comment on the clause. I had a group of very distinguished people under my chairmanship: you could not have a more learned lawyer in the law in Scotland today than Sir Gerald Gordon, who is the finest scholar of Scots law probably for centuries; Charles Stoddart has massive experience as an author and as director of judicial training in Scotland; and Professor Neil Walker has an international reputation on constitutional law and practice. Perhaps I may say for clarification that when the First Minister asked me to chair the group, he started to say that he would give me the names of the people who would join it. I said, “No, I will give you the names”, and I proceeded to give him these names apart from that of Professor Walker, whom I did not know. The First Minister said, “May I suggest Professor Walker?” and I said, “Give me 24 hours and I will say yes or no”. I looked into Professor Walker’s background and consulted my colleagues, and we decided that he would be a valuable member of the group, which indeed he proved to be.

We had no axe to grind whatever. We almost resigned over the appalling remarks made by the First Minister and the Secretary for Justice about the Supreme Court justices at the time, but we decided that it was our duty to do our best because, while that row would pass, these provisions might last for a very long time.

We had only three weeks to produce our first report, and at that stage we could not consult widely. However, we had until mid-September to produce our second report and we then did consult widely. We put the tentative conclusions we had reached in the first report out to consultation and we met with many parties. The report is now available on the Government website, and it makes it clear that many people responded to us. A number of interviews are reproduced. I personally met with a number of senior judges in Scotland, and on more than one occasion with the Advocate-General. He was always courteous enough to listen with great care to what we had to say and, indeed, to respond positively to a number of things.

17:00

In short—for the moment, I am touching only the high spots—we agreed that it was right and proper to retain the jurisdiction of the Supreme Court in relation to human rights issues hitherto governed by the Human Rights Act. I think that we are all agreed about that and I do not know of anyone in this Committee who thinks differently.

We also agreed with Sir David Edward’s group—I think that the Government have accepted this—that we should define and restrict the jurisdiction of the Supreme Court in Scottish criminal cases to determining a human rights issue and then remitting the matter to the Scottish High Court to deal with the consequences. I think that we are also agreed that vires issues, about the competence of Scottish Ministers and the Scottish Parliament, should be dealt with as devolution issues. We are particularly pleased that the Government have recognised that the Supreme Court will remit to the High Court. That means that the High Court is essentially to retain its centuries’ old role as the apex or final court in regard to Scottish criminal cases.

There are a number of additional proposals which I shall touch on but deal with separately slightly later on in order to avoid speaking for a very long time. One relates to the certification of cases for the Supreme Court; in other words, to give the High Court a power to give or withhold a certificate, that certificate being a prerequisite before the Supreme Court can consider an appeal in a criminal case.

We have also to look at the timescale which is allowed for leave to appeal against a decision of the High Court. We say that it should normally be at the end of the case but that there may be exceptions. I shall have to look at that in a little more detail later on. We were also anxious that the Lord Advocate and the Advocate-General for Scotland should have certain rights in getting cases before the Supreme Court, perhaps even before the end of the case.

In particular, we did something which was not entirely popular with the Scottish Government—in fact, we were not very popular when we said that the jurisdiction of the Supreme Court should be retained—which was to advise that Clause 17 was far too restrictive, as had been Section 57 of the Scotland Act, in that it related only to acts or failures to act of the Lord Advocate. We advocated replacing that with a right of the High Court to consider breaches or possible breaches of the Human Rights Act by any public authority. That could include even a criminal prosecution taken by a person other than the Lord Advocate. In the famous Sweeney case, which was prosecuted essentially by the victim of the rape, after the Lord Advocate—who was at that point the noble and learned Lord, Lord Mackay of Clashfern—stood aside, I am not entirely sure that the victim in the Sweeney case would have been regarded as a public authority for those purposes. I do not know, and I do not ask anyone to express an opinion on that matter, particularly at this late hour of the afternoon.

Clause 17, inspired by Sir David Edward’s group’s report, went some of the way and we believe that we have just followed it to its logical and proper conclusions. We have no criticism of what Sir David and his colleagues said in that report. I drafted my amendments in September and October 2010. I withheld them for a long time in the hope that the Government would come forward with their amendments, but when they did not do so, I put mine in.

Having attended the meeting of the Scottish Parliament committee considering the Scotland Bill, I then heard the Lord Advocate accept all the conclusions of the report of the group which I had the honour to chair. The Scottish Government’s Bill team prepared a number of amendments. I felt that they ought to be before this House. But I want to make it clear that although I support those amendments, I do so because those amendments were drafted by technical people to give effect to the proposals of the review group that I chaired. I am not the spokesman for the Lord Advocate and still less a spokesman for the Scottish Government or the First Minister.

However, the result was that when the Advocate-General for Scotland, the noble and learned Lord who is here today, finally lodged his amendments towards the end of December just before Christmas, many of mine were rendered largely superfluous. So I decided that they should go and we should instead adopt an idea that was suggested to me by the Lord Advocate’s Bill team; namely that we should simply put my proposals into Amendments 71 and 72 in the name of the noble and learned Lord.

I will say something about the underlying principles. First, I quote and endorse what was said in the House of Commons at Third Reading, to which reference has been made, by the Secretary of State for Scotland. He said in the context of what was then Clause 13 and is now Clause 17:

“I regret the tone of some of the remarks made against judges in the Supreme Court in recent weeks”.

We all agree with that. He continued:

“I welcome the broad support for the idea that people in all parts of the United Kingdom should enjoy the same rights under the courts”.—[Official Report, Commons 21/6/11; cols. 282-283.]

That is important because it has a strong bearing on the matter of certification.

Following that point, in the debate on 21 June, I find that Ann McKechin, a spokesman for the Labour opposition there, spent some time discussing the Supreme Court new clauses. She said:

“I would like to put on the record what principles should be followed in referring cases to the Supreme Court”.

She continued:

“We believe that no one living in Scotland should have less access to the enforcement of their human rights than any other citizen living elsewhere in the UK”.

Finally, she said that,

“it is important that people in Scotland should receive the same level of protection as everyone else … It is important to have consistency of judgment, which is one of the parts of our judicial process”.—[Official Report, Commons 21/6/11; cols. 285-288.]

That is an important principle that underlines what we said—that we wanted consistency throughout the United Kingdom. We did not seek and we do not advocate uniformity. There has never been uniformity in the criminal process between the courts in Scotland and in England. They have gone different ways, with I hope no harm to the concept of providing a fair trial. We must have consistent interpretation of the human rights provisions, but not necessarily uniformity in how the law is applied in particular jurisdictions where we have quite different systems.

In relation to the matters of principle, I have suggested the correct thing to do. I am not quite sure where the suggestion originally came from but I certainly endorse it. When we make amendments in relation to criminal appeals, those amendments should not go into the Scotland Act 1998 but should go into the Criminal Procedure (Scotland) Act 1995. That is the principle adopted by the Advocate-General and I congratulate him on doing that because it is the right place. In a sense, the issue of criminal appeals in relation to Scottish criminal trials and human rights belongs properly either in the Human Rights Act or alternatively in the Criminal Procedure (Scotland) Act 1995, which deals with appeals. That error, which was made in 1998 in the Scotland Act, is now to be remedied.

It is important to note as a matter of principle that the functions of the Lord Advocate were retained functions, not devolved functions. That was one of the flaws that David Edward so eloquently exposed in his report, which showed that it was a mistake to treat the Lord Advocate’s acts as devolution issues. The High Court of Justiciary was not in any sense devolved at all.

The other matter that I want to draw attention to as a matter of principle is that the only recent relevant change affecting the High Court of Justiciary over criminal appeals is the change made when a new obligation to respect the Human Rights Act and the convention rights contained therein was created in the Human Rights Act 1998; no other change was made in relation to the High Court of Justiciary. It was just an extension of a matter that they had to consider and, in respect of which, it was felt there should be an appeal to the United Kingdom court, for reasons that I support and we explained very fully in the report that I had the honour to act as chair for.

One other point of important principle—and I owe a great debt to Professor Neil Walker in this regard, who made the point very clear for us—is that when any supreme or appeal court sits, it should, so far as possible, be exercising different functions from the court below. It may examine the same question of law and have to revise the question, but, on the whole, you do not have different levels of courts in order to examine the same question. The higher court should be dealing with different questions from those dealt with by the court below.

Unfortunately, we have a grouping with a vast number of amendments, including the particular matters I have dealt with. In the mean time, in order to get Clause 17 out of the way and be sure that we are going ahead with Amendments 71 to 72K, I should sit down for the moment but come back to deal in detail with the particular matters that arise separately. I ask that this clause should not stand part.

[Lord Wallace of Tankerness]

For the convenience of the Committee, I will just explain why we are supporting the proposal that the clause should not stand part and speak to the amendments that are in my name, to which the noble and learned Lord, Lord McCluskey, has proposed his own amendments. That might help some of the structure of the debate.

I start by thanking the noble and learned Lord for the way he introduced this issue and gave a very fair explanation as to how we got here via the judicial representations to the Calman commission, the expert group that I set up under the chairmanship of Sir David Edward, and the subsequent group, to which the First Minister appointed the noble and learned Lord to look at this issue. It is perhaps rare that legal issues get quite as much public prominence as these have had, but there are important issues here. The purpose of Clause 17 was to provide that questions as to whether acts of the Lord Advocate, acting as the head of the criminal prosecution service, were compatible with ECHR or EU law should not be devolution issues under the 1998 Act. Clause 17 provided a separate statutory right of appeal to the Supreme Court for these issues. Under the current Scotland Act, acts of the Lord Advocate acting as the head of the criminal prosecution system in Scotland that are not compatible with ECHR or EU law would be ultra vires by virtue of Section 57(2) of the Scotland Act 1998.

In order to take account of some of the recommendations from the committee chaired by the noble and learned Lord, we thought it better to seek to delete Clause 17 and bring forward new clauses, otherwise it was going to get very difficult and convoluted indeed. In doing so, as the noble and learned Lord pointed out, we have in fact taken on board the point about the Criminal Procedure (Scotland) Act 1995. Many of the things we are doing seek to amend that.

The debate on Clause 17 and the issues that it raises has come a long way. Certainly during the summer there was a lot of heat, if not necessarily light, about the role of the Supreme Court in these matters. The finding in one of the main recommendations of the group under the noble and learned Lord, Lord McCluskey, that it was right and proper to retain appeal to the Supreme Court, allowed us to try to find a way forward that could command as much consensus as possible. There has been progress, and that progress and the fact that we have reached so many areas of agreement has been achieved by open dialogue, proper consultation and mature consideration on all sides. It is certainly in that spirit that I will consider the arguments that are made by noble Lords contributing to the debate this afternoon.

17:15

Amendments 71 and 72 are the Government’s response following careful consideration of the recommendations made by the review group led by the noble and learned Lord, Lord McCluskey, as well as taking on board the views of other noble Lords and having regard to the comments and representations from the Lord President of the Court of Session and the Scottish Government. As most people in the Committee are aware, the Lord President has written to the Clerk of the Parliaments expressing his views on these matters. We ought to be aware of that. He has exercised his powers under the Constitutional Reform Act 2005 to make representations regarding his concerns about Clause 17. I have considered his letter carefully, and Amendments 71 and 72 address one issue that he raised relating to extending the right of appeal so that it does not just apply in relation to acts of the Lord Advocate. He also raised the question of certification, which is clearly an important issue which I will address later.

I am persuaded that the right of appeal to the Supreme Court in criminal proceedings should extend to questions as to whether acts of public authorities are compatible with the ECHR and European law and should not just be limited to certain acts of the Lord Advocate. The definition of “compatibility issue” inserted by Amendment 71 achieves this change and provides that a “compatibility issue” is a question as to whether an act of a public authority is made unlawful by virtue of Section 6(1) of the Human Rights Act 1998 or is incompatible with European Union law. A compatibility issue can be raised only in criminal proceedings. The noble and learned Lord in his review group report—and I think that I recall this from his evidence to the Scottish Parliament Committee—referred to making a number of issues justiciable under the present arrangements under Section 57(2). There have been some quite contorted views as to what the Lord Advocate does or does not do to allow the matter to be considered. Taking forward and reflecting in our amendment the recommendation of the review group allows a much more sensible and straightforward way to deal with these issues.

I am not minded to accept Amendment 71B proposed by the noble and learned Lord, Lord McCluskey, that the new appeal should extend to questions as to whether an Act of the Scottish Parliament is compatible with the ECHR or European law. I may have misheard him, but I thought he said as much himself in his remarks. Questions as to whether an Act of the Scottish Parliament is within the legislative competence of the Parliament should continue to be devolution issues as they relate to the exercise of the Parliament’s powers. They are quite properly devolution issues. A question that concerns the compatibility of an ASP with the ECHR or European law rather than a question of an interpretation of a reserved matter should not result in the application of a different appeal mechanism. In addition, it would mean that if the amendment was carried, if someone wished to argue that an Act of the Scottish Parliament was incompatible with the European Convention on Human Rights and also that it was not law under Section 29, as it also related to a reserved matter, they would need to use a new appeal route in relation to the European Convention of Human Rights issue as well as using the existing devolution issues appeal route. That seems unduly cumbersome and a recipe for delay.

The review group led by the noble and learned Lord made a persuasive case that when the Supreme Court considers a compatibility issue, it should not consider whether a miscarriage of justice arose as a result of the compatibility issue. Instead, the Supreme Court should be required to determine a compatibility issue and then remit the matter to the High Court of Justiciary in Scotland. Amendment 72 provides that the new appeal right to the Supreme Court can apply only to the determination of a compatibility issue. The Supreme Court can reformulate the question it is considering, but only for the purpose of determining the compatibility issue. Amendment 72 clearly provides that the powers of the Supreme Court can be exercised only to determine the compatibility issue, and once the court has done this it must remit the proceedings to the High Court of Justiciary.

There are a number of points in respect of which I have not yet been persuaded by arguments put forward by the noble and learned Lord’s review group, or by the Lord President of the Court of Session and others. Principally, I have yet to be persuaded that it is necessary to provide that a compatibility issue can be appealed only to the Supreme Court if the High Court has certified that it raises a point of general public importance. I respect the arguments that are put on the other side. It is a very well balanced argument; inevitably, when lawyers are involved there are compelling arguments on both sides. Nevertheless, we believe that the Supreme Court has a role as a constitutional court, and that the amendments which the Government are putting forward seek to provide a role for the Supreme Court to deal with certain constitutional issues that arise in criminal cases.

The High Court of Justiciary, sitting as an appeal court, is indeed the final court of appeal. It is the apex court in Scotland in respect of Scottish criminal cases. The exceptions that exist relate to devolution issues, and will exist in relation to compatibility issues if the House agrees these amendments. They will arise because of the constitutional issues raised by the European Convention on Human Rights and European Union law issues, and the need for those issues to be dealt with consistently—a word which I think the noble and learned Lord used, and which I would agree with—throughout the United Kingdom.

The system of certification in England and Wales arises due to the different nature of the Supreme Court in respect of criminal cases in England and Wales. In England and Wales, there is a right to appeal in criminal proceedings to the Supreme Court in respect of all issues, including substantive criminal law and criminal procedure, not just those relating to compatibility with the European Convention on Human Rights and European Union law. In addition, the requirement for certification in England and Wales was introduced to prevent the House of Lords, as it was then the court dealing with these issues, being flooded with criminal appeals. The then Lord Chancellor, Viscount Kilmuir, set out the background to the introduction of certification in England and Wales when the Administration of Justice Bill was being introduced in this House in March 1960. On that occasion, he said:

“If there is to be a right of appeal from the Divisional Court, the question arises: what test is to be applied? For, clearly, some limitation must be imposed on the right of appeal if the House of Lords is not to be flooded with criminal appeals to an unmanageable extent. Then again, whatever test is applied, it ought to be the same for appeals from the Court of Criminal Appeal as from the Divisional Court”—[Official Report, 24/3/60; cols. 249-250.]

This view was supported in the consultation which I undertook in February and March last year. The noble and learned Lord, Lord Cullen of Whitekirk, is here. As a former Lord President of the Court of Session, in his response to the consultation of the review group chaired by the noble and learned Lord, Lord McCluskey, he said:

“In any event the fact that in English criminal cases a certificate is necessary seems to me to be beside the point. It applies to the majority of cases, and is not directed to cases of alleged contravention of Convention rights”,

or European Union law.

I am not persuaded that certification by the High Court is necessary to ensure that the Supreme Court considers only appropriate cases or to prevent it being swamped with cases. The Supreme Court has put a very helpful note on its website, which is also available in your Lordships' Library, entitled Scottish Criminal Cases and the UK Supreme Court. It includes details of the number of Scottish criminal cases that have been dealt with by the Supreme Court. The note sets out that since the Supreme Court was established, just over two years ago, it has dealt with 31 applications to appeal from Scottish criminal cases. In seven the High Court had granted leave to appeal, and of the remaining cases the Supreme Court granted permission to appeal on four occasions and refused it on 20 occasions. I understand that in the four cases in which permission was granted by the Supreme Court, two were upheld and two were dismissed. In addition, a number of cases have been referred to the Supreme Court for consideration, so it cannot be said that the number of Scottish cases being considered by the Supreme Court is in any way a torrent of cases.

Moreover, the House of Lords Constitution Committee, when considering this Bill—including Clause 17—noted that the review group led by the noble and learned Lord, Lord McCluskey, had recommended certification but considered that,

“notwithstanding the legal and political controversy, there is no constitutional objection to clause 17”.

I accept that there does not appear to be a consensus in favour of certification. I recognise and respect that the Lord President agrees with the amendments tabled by the noble and learned Lord that certification is needed. The arguments against certification are also supported by a number of individuals including Sir David Edwards and most of the members of the original group that was set up. The Law Society of Scotland would prefer that the status quo remained at present but indicates that on the issue of certification it is not persuaded. The Faculty of Advocates, JUSTICE and the Scottish Human Rights Commission are also not persuaded.

The reasons give by these bodies and individuals have varied. In response to the consultation that I initiated on specific points relating to Clause 17, JUSTICE considered that certification was not required as,

“we see no evidence that there is any need for a more stringent test than the leave requirement already being applied by the High Court and the Supreme Court in their leave decisions”.

The Scottish Human Rights Commission gave another reason for not supporting certification. In responding to my consultation, it commented:

“The introduction of a test of general public importance will create a barrier to justice in some cases. Such a barrier creates precisely the problem which the Expert Group recognised must be guarded against—namely the potential for different interpretations of Convention rights as between the different jurisdictions within the UK, with the result that a case in Scotland is decided differently to one in England and Wales that raises precisely the same Convention rights issue”.

As I have indicated, the arguments for and against are well balanced. I will listen carefully to what is said in the course of the debate today and will reflect on that and the representations that have been made.

There are other points of difference with the amendments tabled by the noble and learned Lord, Lord McCluskey. I am not persuaded that I, my successors in office or the Lord Advocate should be able to refer a compatibility issue matter to the Supreme Court if the Lord Advocate or the Advocate-General is satisfied that it raises a point of public importance. I consider that the accused, the Lord Advocate and I should all be subject to the same constraints, so it will be for any of us to seek the permission of the High Court in Scotland or, failing that, the Supreme Court to appeal a compatibility issue to the Supreme Court.

I do not consider that it is necessary for the High Court to have power to refer a compatibility issue to the Supreme Court at its own instigation where it considers that the issue raises a point of law of general public importance. I consider that a compatibility issue should be able to be appealed to the Supreme Court only once trial proceedings have concluded and the issue has been determined by the High Court in Scotland. This will ensure that the Supreme Court has the benefit of the knowledge and understanding of the High Court. If it is important that an issue is determined quickly because of the implications for other cases, then there it may be possible for the courts, at each stage of the process, to hear and determine the issue expeditiously.

That said, I appreciate that these are very technical arguments; they are important but very finely balanced. I have deliberated over them, and I will be interested to hear your Lordships’ comments in the course of this debate. I would be willing to consider returning to this on Report in the light of any comments that are made but I believe that, after a considerable amount of work and consideration, we have struck the right balance. The report of the expert group under Sir David Edward and the subsequent review group under the chairmanship of the noble and learned Lord, Lord McCluskey, have assisted us considerably in trying to reach our position, which I believe is well balanced. I commend the amendments to the House.

Clause 17 disagreed.

Amendments 40 and 41 had been withdrawn from the Marshalled List.

Clause 18 : Time limit for human rights actions against Scottish Ministers etc

Amendments 42 and 43 not moved.

[Lord McCluskey]

On a point of order, I understood from our grouping notice this morning that we were going to discuss not just clause 17 stand part but Amendments 71 and 72 by the Advocate-General and the amendments to those amendments standing in my name.

[Lord Wallace of Tankerness]

My Lords, if I can assist here, my understanding is the same as that of the noble and learned Lord, Lord McCluskey. I think that I said when I opened my remarks setting out my amendments that I was seeking not to wind up the debate but, if anything, to open it. There are important issues to be discussed, if it is possible to rewind so that we can have a debate on the amendments. There is an agreement that clause stand part should not take place.

17:30

[The Deputy Chairman of Committees (Lord Faulkner of Worcester)]

The Committee will be free to debate the amendments when we reach them on the Marshalled List.

[Earl Attlee]

My Lords, if I may help the Committee, we cannot go backwards on the Marshalled List. We have decided that Clause 17 will not be part of the Bill.

[Lord McCluskey]

With respect, we are not going back on that: Clause 17 goes out. However, in the same grouping we have the right to discuss the new Amendments 71 and 72, although we cannot move those until we reach that part of the Bill on another day, but because they all raise the same issues the grouping that was arrived at allowed for us to discuss these after dealing with the clause stand part debate. Clause 17 goes out and no one seeks to change that, but we now need to look at Amendments 71 and 72 and the amendments proposed to those amendments.

[Earl Attlee]

My Lords, it may be helpful if I tell the noble and learned Lord that he has not lost the opportunity to speak to those amendments, but he will have to do so when they come up on the Marshalled List. He had the opportunity to speak to the amendments after my noble friend the Minister had spoken. However, the noble and learned Lord chose not to take that opportunity. The Question was put and has been decided, but I emphasise that the noble and learned Lord has not lost the opportunity to speak to the amendments in their place in the Marshalled List.

[Lord Boyd of Duncansby]

My Lords, may I ask a question? They are on the Marshalled List in this group; that is the point. We are all here ready to debate these issues. It would be very unfortunate if we now moved on to other business and came back to this issue; these all form part of a group.

[Lord Cameron of Lochbroom]

I am in some difficulty because in listening to what the noble and learned Lord has already said about Clause 17 stand part, he justified his arguments by reference to later amendments in his name—namely, Amendments 71 and 72. It seems to me perfectly plain that these are before the Committee for discussion even though we may for the moment have swept Clause 17 out of the way—firmly batted it out of court. I ask your Lordships to reconsider the matter which has already been introduced because it would cause intense confusion if we passed over what the noble and learned Lord has already said in support of the amendments which will come in place of the displaced section at a later date.

[Baroness Rawlings]

My Lords, we have put the Question on Clause 17 prematurely. I suggest that we continue the debate.

[Lord McCluskey]

My Lords, I am very grateful to the authorities and the noble Lord in the Chair in connection with this matter. I think we should deal with the amendments but I wonder whether the noble and learned Lord the Advocate-General would like to deal with Amendment 71 before I deal with the amendments to that amendment. Would that not be the proper way to proceed?

[Lord Wallace of Tankerness]

My Lords, obviously, I am not formally moving the relevant amendments because we have not yet come to them but I think that I tried to deal with the content and the structure which we wished to achieve through the amendments. Although I cannot formally move them yet, I think that I have spoken to the substance of them and it might take the debate forward if the noble and learned Lord now makes his response.

[Lord McCluskey]

My Lords, I am perfectly happy to do that. Amendment 71A, which stands in my name, refers to line 11 of government Amendment 71 and proposes to insert the words,

“in the course of criminal proceedings”.

I want to emphasise that we are generally happy with the approach of Amendment 71: at least I am because I am happy that it deals with the Criminal Procedure (Scotland) Act 1995 rather than the 1998 Act—a point which I made earlier. However, the heading of the new clause, which is in bold on the Marshalled List, states:

“Convention rights and EU law: role of Advocate General in relation to criminal proceedings”.

First, I accept that we should deal with EU law as well as ECHR law, although our report did not find it necessary to go into that matter at all. This relates to criminal proceedings. The whole point is that Amendment 71 relates to the Criminal Procedure (Scotland) Act 1995, and we are making provisions in subsection (3) on:

“Right of Advocate General to take part in proceedings”.

I believe that that should read, “take part in criminal proceedings”, for a reason that I shall come to shortly. The provision states, in terms, that:

“The Advocate General … may take part as a party in criminal proceedings so far as they relate to a compatibility issue”.

The compatibility issue is defined here for the purposes of all the proposed new sections, including those that I am proposing.

Subsection (2) of proposed new Section 288ZA states:

“In this section ‘compatibility issue’ means a question whether a public authority has acted (or proposes to act)”

in the way specified in proposed new paragraphs (a) and (b). Again, we ought, for clarity to insert the words, “in the course of criminal proceedings”. They merely add something that is perfectly obvious, but they have a bearing on the important issue as to whether or not questions arising in criminal proceedings might be treated as vires issues in the way mentioned by the noble and learned Lord when he was speaking a moment ago.

Therefore, my next amendment proposes to insert after “whether”:

“an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is outside the legislative competence of the Parliament as being incompatible”.

This is an important issue because the Advocate-General has very properly decided that there should be an amendment to paragraph 1 of Schedule 6 to the 1998 Act. That change appears in the new clause proposed in Amendment 72. Subsection (3) states:

“In paragraph 1 of Schedule 6 …after sub-paragraph (f) insert—‘But a question arising in criminal proceedings in Scotland is not a devolution issue if it is a compatibility issue within the meaning of section 288ZA of the Criminal Procedure (Scotland) Act”.

When one looks at that provision in subsection (2) of the new section proposed in Amendment 71, we find that a compatibility issue includes,

“whether a public authority has acted (or proposes to act) … in a way which is made unlawful by section 6(1)”.

I may be wrong about this, and I hope to hear the noble and learned Lord’s reply, but if a Member of the Scottish Parliament—particularly a Member of the Government—proposes a Bill in the Scottish Parliament that will breach a convention right, as specified in Section 6(1) of the Human Rights Act 1998, that is unlawful. Therefore, under the proposed new clause in Amendment 72, from which I quoted a moment ago, a question arising in criminal proceedings is not a devolution issue, if it is a compatibility issue within that meaning. The result is, I think—although I may be wrong, because this is difficult to follow—that if, in the course of a criminal trial, assuming that the noble and learned Lord’s amendments on these matters are accepted, a person states, “The Act under which I have prosecuted or which has a bearing upon the prosecution is beyond the competence of the Parliament”, it will instantly become a compatibility issue that is not a devolution issue. Therefore, the alternative route of using the vires provisions under Schedule 6, to which the Advocate-General refers, will not be available to anyone. In other words, there is only one route to take, which is what I want to happen.

On 17 January, the Advocate-General said to me in a letter, and repeated today:

“I am not minded to accept the Lord Advocate’s suggestion”—

a suggestion made by the Lord Advocate before the committee at which I spoke—

“that the new appeal should extend to questions as to whether an Act of the Scottish Parliament is compatible with ECHR or EU law. The suggestion would mean that if someone wishes to argue that an ASP is incompatible with the ECHR and that it also relates to reserved matters they would need to use the new appeal route in relation to the ECHR issue as well as the existing devolution issues appeal route”.

I think that his amendments knocked out the devolution issue and have given us what we want, but I would be interested to hear his view on that and whether there has been some confusion on the matter.

The other amendment which I should mention in this context bears on proposed new Section 288ZA in Amendment 71, where I propose to add in subsection (2),

“references to the course of criminal proceedings are to the period beginning with the detention or arrest of a person for an offence and ending with the pronouncing of the final interlocutor”.

The reason for that highly technical amendment is that it is possible that, before a person is detained or arrested, there might be by a public authority—whether the police or the BBC, for example—an invasion of his human right to a fair trial by saying things about the accused even before he is detained. We may need to look at that separately, but the amendment draws attention to the fact that there ought to be a definition as to when criminal proceedings begin in the Act, so as to leave it in no doubt. There have been difficult questions in past cases about when a person is charged, when he is detained, et cetera. Those words themselves are not crystal clear, but I want to make it crystal clear when criminal proceedings begin and when, for the purposes of compatibility issues, they end. That matter is covered by my Amendments 71A to 71C, which draw attention to what I think are problems arising from the framing of Amendment 71, which proposes the new clause.

[Lord Boyd of Duncansby]

I must say that I am somewhat confused as to where we are on all this and whether, for example, I have now to address the issue of certification. I am not entirely clear whether the noble and learned Lord, Lord McCluskey, has yet to address that issue.

However, first, as the noble and learned Lord observed, I was a member of the Advocate-General’s expert group looking at the issue of the jurisdiction of the Supreme Court. We welcome the progress that has been made by the noble and learned Lord and reflected in the government amendments. The expert group recommended that the jurisdiction of the Supreme Court should continue and should be focused on the role of the prosecutor, but that convention compliance in criminal should be outwith the jurisdiction or ambit of Section 57(2).

17:45

In making these recommendations, it is fair to say that we were conscious of the sensitivities that the proposed changes in the jurisdiction might engage, and conscious of keeping our recommendations within the strict ambit of the remit that we were given. Nevertheless, it is true that our report—and perhaps more importantly the controversy that surrounded the cases of Cadder and Fraser, the debate that was provoked and, most importantly, the review headed by the noble and learned Lord—refocused the debate and changed the emphasis away from the role of the prosecutor. That was a welcome step.

I do not want to detain the Committee on the reasons for going away from the status quo, particularly now that Clause 17 has been departed from, but it is right to say that the jurisdiction was a somewhat contrived one, focusing on the role of the prosecutor, distorting the issue and widening out the definition of acts of the Lord Advocate beyond those which, perhaps, would have a more natural meaning, or particular steps in a judicial process.

We have moved on. The amendments before the Committee break down into a number of clear issues. The first is certification, focused on in the amendments of the noble and learned Lord, Lord McCluskey. That is now the real issue between us: whether or not there should be an additional hurdle, not previously present in the jurisdiction under the devolution issues, of certification. That issue is of genuine public importance. That certificate would be given by the High Court. The decision would be final, with no appeal against the certification. From this side of the House, like the noble and learned Lord, Lord Wallace of Tankerness, we will listen to the debate. Nevertheless, it is fair to say that we do not support certification.

There is of course an issue of principle. For myself, I have a philosophical difficulty with the concept that the court against which an appeal is being taken can itself control access to that right of appeal. There is no appeal against a refusal to certify if the issue is a point of general public importance. The right to petition the Supreme Court would not apply, as I understand it, to certification. Now, of course, I appreciate that it will be said that that does not apply to criminal appeals from England, Wales and Northern Ireland—although I think that there are some exceptions, habeas corpus being one of them. The fact that that is the case in relation to criminal appeals in England and Wales does not make it right that it should be present for fundamental issues of human rights arising from criminal cases in Scotland. The noble and learned Lord the Advocate-General is right to draw a distinction between criminal cases as such and the constitutional issues, which are focused in issues of compliance with the fundamental rights contained in the European Convention of Human Rights.

Moreover, as the issue of certification in England and Wales is at large in criminal cases, we are not dealing with a level playing field—we are not comparing like with like. The present system relies on obtaining leave from the High Court. Leave should be given only if a devolution issue is raised that is seriously arguable and sufficiently important to justify a hearing of the appeal by the Supreme Court. Therefore, I suggest that it is already a high test but there is a right to petition the Supreme Court for special leave if leave is not given. That, in my submission, is an important protection.

There is the question of how certification might work in practice. It would, as Lord Hamilton acknowledges, be a new function for the court. I have no doubt that the court would take the responsibility seriously but how would it work in practice? Although it is a different test, there were 15 cases in which special leave was granted by either the Judicial Committee of the Privy Council or the Supreme Court from 1 June 1999 to the end of February 2011. These included cases of the utmost importance, including the case of Holland, which related to disclosure and the conduct of identification parades, and, most recently, the case of Cadder. I do not suggest for one moment that that was improperly dealt with—far from it. However, the fact is that it was rejected in the sift on two occasions and leave to appeal to the Supreme Court was refused. The appellants presented a petition to the Supreme Court for special leave, which was granted. Whatever one might think of the rights and wrongs of the decision, it certainly dealt with one of the fundamental issues of rights of access to a lawyer. I just make the point that, had the law remained as it was in Scotland, Scotland would have been one of a dwindling number of European countries which denied a right of access to a lawyer before questioning by a police officer. This is perhaps a moot point if the European Union directive on access to a lawyer is opted into by the Government, because that will have to come about as a result of EU legislation. However, that was a fundamental issue and special leave was granted.

Lord Hamilton, the Lord President of the Court of Session, has written to Parliament under Section 5 of the Constitutional Reform Act. It is important that we consider all that he says in his capacity as head of the Scottish judiciary and give due weight to the issues that he raises. Of course, the Government have listened in relation to the first part of his letter, and we welcome that. However, it is also important to put the letter into its context and I shall make two preliminary points.

First, Lord Hamilton does not suggest that the proposal that the Government are advancing in any way impinges on the independence of the judiciary. If that were the case, it would be a most serious matter and would require us to draw back and think again. Secondly, he does not suggest that the proposals impose any further administrative burden on the court system or on judges. In many ways, if anything the burden is more likely to fall on the Supreme Court, and there has been no complaint from that quarter. In so far as the letter from the Lord President relates to certification, it has to be seen against the background of concern from the judiciary in Scotland about the jurisdiction of the Supreme Court.

As we have already heard, the Scottish judges made a submission to the Calman commission and one of the main difficulties that they highlighted was what they perceived as a difference of interpretation between themselves and the High Court and the Supreme Court on the test of miscarriage of justice contained in the 1995 Act. They also raised important issues about delays in the system and the burden. At that time, they suggested three alternative solutions. I need not detain the Committee with what those solutions were but two of them would have removed the jurisdiction of the Supreme Court altogether and the third would have widened the jurisdiction to include any criminal case—not just a convention or EU compatibility. In other words, it would be the same jurisdiction as England and Wales have and would be a novel one for the law of Scotland. It is fair to say that no one thought that the judges’ third suggestion was one that they considered would be taken particularly seriously.

The issue that they put before us in the Calman commission was whether the Supreme Court should continue to have any jurisdiction in convention cases. The Calman commission considered that this went beyond the remit but acknowledged that there was a serious issue to be addressed, hence, of course, by the Advocate-General’s expert group.

Some of the difficulties that the Scottish judges had initially highlighted in relation to miscarriage of justice and its definition were largely resolved in later cases, in particular, I think—no doubt I shall be corrected by others if I am wrong—the case of McInnes in 2009. Some of the issues in relation to the burden on the system and potential delays have been addressed, first, by the expert group and then by the Government and by the expert group of the noble and learned Lord, Lord McCluskey.

I submit that many of the original issues that the judges raised with us have now been dealt with. However, the Scottish judges have continued to press for changes to the jurisdiction. I need not go into this in any detail, as it would not be appropriate, but it is clear that there have been tensions between the two different levels of courts. Perhaps that is inevitable in a new jurisdiction. I suspect that any lingering issues will soon be resolved as the jurisdiction settles down and as the major issues are dealt with. I think many of them, such as disclosure, rights of access to a lawyer and so on, have already been dealt with. Delay was another early issue which was dealt with and on the whole it has not been visited since then and there is also the issue of changes in personnel.

Our task in this Committee is neither to arbitrate between the two courts, nor indeed to come down on one side or the other. Our task is to ask ourselves whether the imposition of a further hurdle in reaching the Supreme Court of the United Kingdom on compliance with fundamental rights and freedoms, incorporated in the European Convention of Human Rights, is appropriate or necessary. We on these Benches think that is not an appropriate measure to take.

We support the amendments that have been tabled by the Government. I listened carefully to what the noble and learned Lord had to say about Amendment 71B. He raises the important issue of how compatibility of an Act of the Scottish Parliament is dealt with in criminal proceedings. My view is that the issue of whether an Act of the Scottish Parliament is compatible with the European Convention of Human Rights should continue to be dealt with as a devolution issue. The question is whether the amendment of the noble and learned Lord the Advocate-General achieves that. We may need to look at that.

Amendment 71C concerns criminal proceedings. We will no doubt hear from the noble and learned Lord on that. Amendment 72A comes later in the group. I am not sure whether the noble and learned Lord spoke to it. I asked whether Amendment 72A was necessary, because the matter is dealt with in Section 124 of the Criminal Procedure (Scotland) Act.

18:00

[Lord McCluskey]

I did not speak to that amendment. I agree that it may not be entirely necessary. However, as the noble and learned Lord knows, many a time have we put something in statute to make a clear point. Because there has been debate, including among lawyers, about whether the High Court of Justiciary is the final court except in relation to compatibility issues, there is something to be said for putting this in the Bill. I felt that that would be a way to do it. That was why I tabled the amendment. The intention was to underline a point that is implicit elsewhere in the Act and, as the noble and learned Lord said, is stated expressly in other Acts.

[Lord Boyd of Duncansby]

I am grateful to the noble and learned Lord for that. On the broad issue of references to the High Court and Supreme Court by the Lord Advocate and Advocate-General for Scotland, I will reserve my position and consider the matter in more detail. When I was Lord Advocate, I always thought that the opportunity for doing was important. I believe that I did it once. I also take the point made by the noble and learned Lord the Advocate-General that there may be issues around whether it would be better if any of the parties could ask the court to do this. I will consider that before Report. I think that I have dealt with most of the issues. Given the wide-ranging nature of the amendments in this group, I may have missed something. However, I hope I picked up on all the necessary points.

[Baroness Rawlings]

My Lords, perhaps I may tell all noble Lords that they should feel free to comment on any amendments on the Marshalled List that relate to Clause 17.

[Lord McCluskey]

My Lords, I will comment in greater detail on the matter of certification. The lawyers among us will recognise that it arises in relation to various amendments, including Amendments 72B, 72C and 72D. The report of the review group that I chaired deals with the matter in paragraphs 35 onwards. No doubt the noble and learned Lord the Advocate-General has had a careful look at what was said there. We are dealing with a point of law of general public importance. The noble and learned Lord, Lord Boyd, referred to the philosophical objection: namely, that a court can prevent an appeal against its own decision. That is fairly common. However, in this case the English Court of Criminal Appeal, having considered that very matter, said that it did not arise because the issue of whether a case raises a point of law of general public importance is not the issue that was decided in the appeal. That empowers the Court of Appeal in England to prevent an appeal to the Supreme Court, but in various cases in England, the Court of Appeal and others have upheld that particular right on the ground that there must be a filter. I could refer your Lordships to some detail, but I shall not go into detail on that matter at this late hour.

In other words, the point to be considered is a point of law of general public importance, a different point from that considered in the appeal. Mention has been made of the case of Cadder in which leave was refused, but I am assured by judges who took part in that case and others that there can be no question that if someone had said to the court that that case raised a point of law of general public importance, the judges would have said that it did and a certificate would have been granted. Of course, there was no occasion to consider that because there was no law in Scotland requiring that to be done. The whole matter has been looked at in great detail in the English Court of Appeal and elsewhere in England, and your Lordships will find a very useful summary of the law in an article by CJS Knight in the Law Quarterly Review 2011 “Second criminal appeals and the requirement of certification”. I shall not read excerpts from that tonight because there is not really time.

Bearing in mind that the High Court of Justiciary has always been responsible for deciding all matters of substance, the only thing that changed in 1998 was the introduction of a new ground of appeal. That is what I said earlier, but I repeat it. Plainly, when the English and, indeed, the Northern Irish considered whether certification should apply to that, they decided implicitly that it would continue to apply there, so why should Scottish judges not be trusted to make the same judgment that is made in Northern Ireland and in the Court of Appeal Criminal Division in England about whether a case raises a point of law of general public importance? It is, in effect, to demean the Scottish judiciary to say that they cannot detach themselves sufficiently from the case in order to make that judgment.

Noble Lords who followed the history of this matter in more detail than I would recommend will know that we raised this question when we put the matter out for consultation between our first and second reports, and nobody suggested that there was anything wrong with the court deciding whether to consider leave to appeal from its own decision. That largely covers the same point.

I ought to deal with some of the objections. First, there is the objection which is the principal one taken by Sir David Edward and some of the members of this Committee subsequent to our report. It was that in England no certification is required for habeas corpus. We do not have habeas corpus in Scotland. We have our own rules and, in any event, we are bound by Article 5. If one wanted to introduce an exception to the rule for certification, it would be easy to do so under reference to Article 5. There are other minor things in relation to contempt of court and courts martial. I have no objection to a list of exceptions which would mirror those in England, except in relation to habeas corpus, which, as I have said, would be dealt with differently.

It is very important to take account of and to give full and proper weight to the written representation by the Lord Justice General. So far as I can tell, it has never been done before. The Lord Justice General thought very carefully and hard, and he decided to make these representations. Furthermore, he consulted the noble and learned Lord, Lord Judge, and he also consulted the noble and learned Lord, Lord Phillips of Worth Matravers, if I recall correctly, and they said that the certification created no problem in England for the courts for which they were responsible. The Lord Advocate and the Scottish Government support our position on this, and the Scotland Bill Committee of Members of the Scottish Parliament also supported it. Indeed, Paul McBride, who was a member of Sir David Edward’s group, has specifically decided to support it and said so to that Committee.

The objections taken by others have been mentioned by the noble and learned Lord—for example, the Law Society and the Faculty of Advocates—but they were barking up a tree which no longer has the branch on which they were endeavouring to sit; namely, that the matter is no longer a devolution issue if it arises in the course of criminal proceedings. Therefore, the idea that because devolution issues are taken to the Supreme Court without permission in other parts of the United Kingdom no longer has any validity. Therefore, in my submission to your Lordships, the reasoning on that is not sound.

If certification and leave are granted in England and Wales, the Supreme Court considers the point of law and then deals with it and any other matters necessary to decide the appeal. That is exactly what we propose. I remind your Lordships of what was said by the Lord Justice General in the written submission—if I can get my iPad to remind me of what I have on it. He said in terms that this issue relates to,

“the appropriate relationship between an intermediate court of criminal appeal (such as the High Court … in its appellate capacity) and a further court of appeal (such as the Supreme Court)”.

He goes on to discuss that in some detail. He said that the English provision has recently been held to be “Convention compliant” in the case of Dunn in 2010. He adds:

“From conversation with the current Lord Chief Justice of England and Wales (Lord Judge) and with the current Lord Chief Justice of Northern Ireland (Sir Declan Morgan) I understand that each of them finds the certification requirement to be valuable and, so far as I am aware, it raises no difficulties in practice”.

At paragraph 13 of the written submission, he mentions that it would have “value for Scotland” and, in particular, that there is no reason why we should be different from England in relation to that. Perhaps I may remind your Lordships of the quotations that I gave from House of Commons Hansard of 21 June 2011 from Ministers who envisage that the regime should be the same on both sides of the border in relation to the Supreme Court.

On the very important point made by the noble and learned Lord, Lord Boyd, the Lord Justice General said:

“The consideration of applications for a certificate would be a new responsibility for the judges of the High Court. But there is every reason to suppose that, like their colleagues in the other jurisdictions in the United Kingdom, they would act reasonably and responsibly”.

I remain of the view that the relevant amendment should be considered further by the Minister and the noble and learned Lord, Lord Boyd, but we will not reach it today because it is way down the list. However, I am certainly reserving my position. After today’s debate, if I can overcome the confusions which are partly my responsibility, I intend to put down amendments for Report in order to ensure that the matters still outstanding are more fully debated. I would express the hope to the House authorities that on that occasion we will not be sitting late on a Thursday afternoon when the Scots have gone home—sent homeward to fight again is the expression that we will be hearing on Saturday afternoon in a different context. They have gone home, which is a great pity because, although this is not the most important matter since the fall of the Berlin Wall, none the less it is an important matter in this context. I remind the noble and learned Lord of what I have said to him, and I think that he agrees with me. This is not just for Christmas; it is for a very long time. It may be many years before this legislation is looked at again, so I hope that it will be looked at very thoroughly in this context.

As far as I am concerned, that deals with certification and I will return to the other matters in a moment or two.

Lord Cullen of Whitekirk: My Lords, the review group under the noble and learned Lord, Lord McCluskey, is to be complimented on the work that it has done so enthusiastically but I have considerable reservations about the proposal that there should be certification for access to the Supreme Court. Of course, I speak with an interest in this matter as a former Lord Justice General. As matters stand, an appellant who seeks permission from the Supreme Court, having been refused it by the Appeal Court, requires to satisfy the appeal panel of the Supreme Court in accordance with the relevant practice direction that the application raises,

“an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time”.

So one must ask: is there a need for a certificate from the Appeal Court? The main argument presented by the noble and learned Lord, Lord McCluskey, is that it is necessary in order to achieve consistency or parity with the position in England, Wales and Northern Ireland. But, as the noble and learned Lord, Lord Boyd, has said, is this comparing like with like? The Appeal Courts in those other jurisdictions may be asked to sanction appeals to the Supreme Court on a wide variety of issues concerned with any aspect of criminal law and procedure. In the case of Scotland, on the other hand, the Supreme Court has a special jurisdiction to deal with issues confined to alleged breaches of human rights, and it is for this reason that the group under Sir David Edward rejected any attempt to draw a parallel. The group confirmed that this was the case when responding to questions from the review group under the noble and learned Lord, Lord McCluskey.

18:15

As has been pointed out, the original reason for certification in the case of England and Wales appears to have been a fear that the House of Lords would be swamped with cases. I have yet to hear anything to indicate that the Supreme Court or its members have expressed concern that they are going to be or indeed have in the past been flooded with appeals. All that deals with the question of need, but the critical question is whether it is appropriate that, of all things, for human rights cases there should be a need to have this certificate.

The law relating to human rights, and in particular the way in which it impinges on criminal procedure, is still in a state of development. We have not yet got to the end of the road. Experience has shown that it may have important consequences for the liberty of a subject and for the processes of investigation and prosecution. The Supreme Court has the unique responsibility of interpreting the European Convention on Human Rights in a manner that achieves consistency across the United Kingdom while respecting the distinctive characteristics of the different jurisdictions. I respect what has been said by the present Lord Justice General in his written representations about the ability of the Appeal Court in Scotland to appreciate the operation of the criminal law in the community which it serves. Thus, that Appeal Court may be in a good position to form a view that the compatibility issue in a particular case does not, according to the court, raise a point of law of general public importance. There is nothing to prevent that Appeal Court from saying so and indeed giving it as a reason for refusing leave, but for that to constitute an absolute bar to an appeal to the Supreme Court is altogether a different matter. So it is very important to consider the practical implications of the proposal being made by the noble and learned Lord, Lord McCluskey.

Perhaps I should cite an example of what may happen. What if the Appeal Court in Scotland, for some reason, has not addressed the compatibility issue which had been raised by the appellant before it, whereas the Supreme Court considers that it should have done? The difference may be critical. This has happened in the past with regard to devolution cases and it may happen in the future with regard to compatibility issue cases. A recent example is provided by the case of Fraser, which has already been mentioned, decided in May last year by the Supreme Court. The court held that, in declining to address a devolution issue, the Appeal Court had failed to adopt the correct test. On the devolution issue, it decided that the non-disclosure of certain police evidence had deprived the appellant of a fair trial, and on that basis his appeal was allowed. Of course, the appellant had access to the Appeal Court by obtaining permission to appeal. I shall say nothing as to the rightness or wrongness of any of those decisions. What I am concerned with is the possibility for views to diverge.

If one supposes that a certificate is to be mandatory for a right of appeal to the Supreme Court, it raises a difficulty. It seems doubtful that an appeal court which had not determined the compatibility issue would find itself in a good position to decide whether to grant this supposed certificate. It is not impossible that it might do so, but it seems highly improbable, because, as far as it was concerned, there would be no compatibility issue to be addressed—and, of course, the Supreme Court is entirely for compatibility issues. This is perhaps just one for example of what may happen. All I say is that, in viewing this proposal, one should be very wary about approving it.

[Lord Cameron of Lochbroom]

I shall speak briefly because I look at the matter not in particular detail but, like the noble and learned Lord, Lord Boyd, from a philosophical view. Scottish criminal law and procedure has developed in an entirely different way from that in the other jurisdictions in the United Kingdom, but it has now had placed above it a Supreme Court with a particular mandate. It seems to me that that is the court which at the end of the day can determine whether what is being brought before it, whether with leave or without it, is a matter with which it should be concerned, looking to its universal jurisdiction in order to provide consistency in a very special area of law.

That being so, notwithstanding my having no reason to doubt that in general the court below will be capable of determining whether a point of public law importance arises, there are special cases where that might not be perceived by the court below and no harm is done by leaving out the certification procedure which is available in a different form in the way of leave, and by adopting the path in these matters suggested by the noble and learned Lord the Advocate-General.

I do not intend to deal with any of the other matters, because this seems to me the real nub point in the relationship between the High Court of Justiciary and the Supreme Court which arises out of the other amendments which have been proposed.

[Lord McCluskey]

I hope that this will be the last time that I rise to my feet in this part of the debate. I shall endeavour by Report to formulate one amendment on matters relating to certification so that we can address this topic more fully than we have been able to do today.

Perhaps I may turn in the mean time to Amendment 72C and, linked with it, Amendment 72H. After “only”, Amendment 72C would insert,

“after the final determination of the proceedings, except with the permission of the High Court under subsection (5C)”.

That subsection relates to proposed new Section 288AB and references before the finality of the proceedings. In the normal case, the judgment that is required to be made under Article 6, which is the most important article bearing upon these issues, is whether the appellant— the accused or convicted person—has been deprived of a fair trial. The courts in Strasbourg, England and Edinburgh have repeatedly said that you judge the question of the fairness of the trial in the light of the whole circumstances. That is why I suggest that normally the appeal should take place at the end of the proceedings in the High Court and not before. That has the advantage that it avoids delay in the middle of proceedings of an unnecessary kind.

There have to be exceptions. The most obvious example is an issue such as the temporary sheriffs case, where it is independent of the facts of the case. It is an issue as to whether or not the court is an independent tribunal. There have been other cases of that general character. The court could make an exception there and we can surely trust it to do so. But the idea is that no appeal goes before the proceedings have been finalised in the High Court.

Amendment 72H deals with an issue related to that but also related more to the fact that the court can send it away ex proprio motu if it decides that that would further the interests of justice. The amendment relates to the fact that the Lord Advocate or Advocate-General may require the High Court to refer a compatibility issue to the Supreme Court for determination. That appears to be again on a par with the court deciding that the interests of justice require this issue to be decided if it can be decided without reference to the facts of the case. The Lord Advocate in particular—I am sure that others in the Committee could confirm this—may well have knowledge of the consequences of a particular decision going a particular way. He may be anxious to get these consequences ventilated and the decision made because there may be hundreds or even thousands of cases pending the decision. I very much want to see that the Lord Advocate has this power.

I am sure that it would be exercised responsibly. There is no reason to suppose that the Lord Advocate would exercise it irresponsibly and I am sure that it will be confined to those cases where it is clear that the matter is independent of the fairness of the trial on the facts or the conduct of the trial itself. Rather, it is dependent on an issue that lies outside the trial.

Amendments 72F and 72G relate to the possible extension of the 28-day period. In my submission, once a case has been through the High Court before a judge and jury or before the Sheriff Court and then it goes to the High Court of Justiciary sitting as an Appeal Court, one would have thought that by that stage all the issues had been properly identified. Therefore, 28 days is long enough to allow an appellant to formulate his grounds of appeal. That is why I do not see the need for a longer period for the High Court, having regard to all the circumstances. That is contained in the amendment of the Advocate-General. I wanted to delete that proposed new subsection and also the one relating to a similar power in the Supreme Court.

It is important to bear in mind that under the European Convention on Human Rights and the Human Rights Act the victim is usually the accused person, whereas the injured person or the relatives of the deceased person are not victims at all. But in truth and public understanding, the real victims of crime are those who have suffered from the crime. They want to see cases finished as quickly as possible. Therefore the possibility that the Supreme Court or the High Court may take weeks or months to decide a matter and then allow an appeal is abhorrent to the general public. I submit that the Government should consider very carefully accepting my amendments to the new clause proposed in Amendment 72 and restrict the period to 28 days.

18:30

[Lord Boyd of Duncansby]

My Lords, I have very little else to add to what has been a useful debate. However, I hope that next time we come to this we are able to group the amendments in such a way that we can have a more structured debate, because it has not been particularly easy to follow. The noble and learned Lord has been up and down on his feet—I do not blame him for that in any way, but the way that this has progressed has been unfortunate. Perhaps next time we can look more clearly at grouping the amendments in a more coherent manner.

[Lord Maclennan of Rogart]

It may be regarded as something of an impertinence for one who is not a Scots lawyer to intervene in such a debate and I therefore propose to confine my remarks. I hope that when we do come back to this, there will be a jury as well as judges sitting, and that we may hear the voice of the man in the street on this matter. Speaking with the view of the man in the street, I am bound to say that I find the Government’s position on this, and the views expressed by the noble and learned Lords, Lord Cullen and Lord Cameron, persuasive. It seems to me that the prime consideration is not whether or not the trial can be completed quickly, but whether or not justice is done. Those who are charged with an offence should have the right of appeal considered, unrelated to whether or not the issue is of public importance. It is of direct importance to the individuals involved in the trial. I may be completely off beam, and I recognise the risk of intervening in such a debate, but having listened to most of the arguments, I found them compelling, particularly on the side of the noble and learned Lord, Lord Cullen.

[Lord Wallace of Tankerness]

My Lords, first of all I thank all the noble Lords—noble and learned Lords—who have taken part. We may be small in number, but we have two former Lord Advocates, a former Solicitor-General and Senator of the College of Justice, and a former Lord Justice General. The experience that has been brought to bear on the issues has been quite considerable. We even have a member of the jury in my noble friend Lord Maclennan.

In retrospect it would have been easier if we could have had a more focused debate, but it is quite clear that we are going to return to this matter on Report and I certainly take on board the points that have been made. The grouping was intended to allow for a full discussion on this issue and all the different points in relation to it. I will certainly give consideration, through the usual channels, as to how we might group the amendments on Report so that we have some quite focused debate, particularly on the point of certification, which is possibly the most important point at issue.

I will come on to certification in a moment, but will briefly respond to some of the other points raised, particularly by the noble and learned Lord, Lord McCluskey. He indicated that he had tabled Amendment 71A to insert the words,

“in the course of criminal proceedings”.

The amendment amends the proposed new Section 288ZA(2) to do this. We believe that our amendment inserting Section 288ZA(1) makes clear that the new appeal route only arises in the context of criminal proceedings, but I did listen to what the noble and learned Lord said. There may be some ambiguity or lack of sufficient clarity, and I will certainly want to look at this. I have looked at drafts at various times and I do accept that it is sometimes difficult when you are trying to import things into a different Act to make sure that it is right. I will look at the particular point that he raised there.

With regard to the noble and learned Lord’s point about defining “criminal proceedings”, the term “criminal proceedings” is already used in the Criminal Procedure (Scotland) Act 1995, and we are therefore content that no definition is required. Indeed, inserting a definition just in relation to these particular provisions may inadvertently cast doubt on the meaning of the term when it is applied to other provisions of the 1995 Act. Therefore, to ensure consistency throughout the Act, we felt that particular amendment would not be necessary.

The noble and learned Lord, Lord McCluskey, asked whether there would be a compatibility issue if an Act of the Scottish Parliament was introduced by an MSP in breach of Article 6. It is important to point out that introducing legislation in itself does not change the law and would not be incompatible with the convention. It is only when the Bill is passed that the issue of a possible breach of Section 29 of the Scotland Act would arise. At that point, a challenge to an Act of the Scottish Parliament would be a devolution issue. However, I think that the noble and learned Lord, Lord Boyd, indicated that we had made it clear—and the noble and learned Lord, Lord McCluskey, read out from the letter that I sent to him last month—and it is certainly clear that it is the Government’s intention that issues that arise in respect of Acts of the Scottish Parliament over whether they are compatible or within competence, under Section 29 of the Scotland Act, should be treated as devolution issues. They should use the procedures that currently exist for devolution issues and should not go down a route for compatibility issues. Indeed, my concern was that you could have some parts going down a devolution issue and some going down a compatibility issue. That is certainly our intention; I will look carefully at these amendments as drafted to make sure that proper effect is given to that intention and that an unintended ambiguity has not arisen.

The noble and learned Lord, Lord McCluskey, also raised the question of time limits. The reason for the exception here was not without precedent—and I think that there was agreement generally that the time limits should be there. Section 7(5) of the Human Rights Act 1998 provides that proceedings alleging that a public authority has acted unlawfully by virtue of Section 6(1) of the Human Rights Act must be brought within a year of the alleged unlawful act. However, this time limit can be extended if the court or tribunal considers it equitable having regard to all the circumstances.

In a case reported last year, R (Cockburn) v the Secretary of State for Health, the court considered it equitable to extend the time limit under Section 7(5) because the claim raised a matter of public importance, and it was not suggested that the delay had not caused hardship to the defendant or to third parties or was detrimental to good administration. This is to give discretion to the courts when it may be that this is how justice can be done in circumstances where no one is necessarily at fault and permission was not sought in the time limit specified in the amendment.

The other point related to the point raised by the noble and learned Lord, Lord McCluskey, about the Lord Advocate or Advocate-General being able to refer a matter to the Supreme Court. This is an issue which I have certainly given careful consideration to, and I readily accept that there are good arguments on both sides. There is the argument, as the noble and learned Lord indicated, that a lot of cases might be backing up when one decision is needed to resolve a whole host of cases. On the other hand, as I indicated when I spoke earlier, the advantage of the trial having been completed, and the Supreme Court having the advantage of the case having been given consideration by the High Court of Justiciary, is something that is of importance. However, I will reflect again on that. I have done so many times, and there are important issues here.

[Lord McCluskey]

I have not had a chance to check, but I have a recollection that the Attorney-General in England intervened to have a case taken to the Supreme Court earlier, but I am not sure about that. Perhaps the noble and learned Lord could deal with that on another occasion, if he is not able to do so today.

[Lord Wallace of Tankerness]

Indeed, I can confirm that the Lord Advocate has referred cases directly to the Supreme Court; the so-called “sons of Cadder” cases were on references by the Lord Advocate to the Supreme Court within the last 12 months. So it clearly has been done. Those were cases clearly where there was a wish to get clarity in some of the implications of the original Cadder judgment. So there are certainly good arguments as to why that should be there, and ones that I am certainly prepared to listen to further.

[Lord Boyd of Duncansby]

I referred a case about the independence of justices of the peace, for the very reason to which the noble and learned Lord, Lord McCluskey, referred—because of the importance in getting clarity at an early stage so that the system as a whole did not seize up.

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord, Lord Boyd, for that because there are arguments there and I will give further reflection to them.

A good number of issues have been aired on certification. I am grateful to the noble and learned Lords, Lord Cullen, Lord Cameron of Lochbroom and Lord Boyd of Duncansby, who indicated on certification that although there have been issues against it, in fact the case that the Government have sought to make against certification can be justified on a number of grounds. It is right, as a number of your Lordships have indicated, that we are not comparing like with like. As I indicated in my opening remarks, in England and Wales the whole criminal justice system of substantive criminal law and criminal procedure is the potential subject matter of appeals to the Supreme Court, whereas here we are dealing with what are essentially constitutional issues that arise in the context of a criminal case—namely, convention compliance or European Union laws.

Also, as I indicated before, the original justification for certification was very much administrative. It was an Administration of Justice Act in which it was introduced, to ensure that there was not a great flood of cases. I believe that it was brought in not for any reason of jurisprudence—as the quotes from the then Lord Chancellor, Viscount Kilmuir, suggest—but as an administrative break. Again, not least because of the representations which we have received from the Lord Justice General, we will treat these matters very sensitively and seriously, giving proper weight to the arguments that have been advanced again. It would be fair to say that the arguments advanced in the course of your Lordships’ debate this evening have not really prompted me to change my mind on this, but no doubt these matters will be returned to.

I am grateful to the noble and learned Lord, Lord McCluskey, for giving us a focus for some of the debates which we have had, and I very much hope that on Report—

[Lord McCluskey]

I want to reiterate that I regret that because of the way the amendments were grouped, the debate was not able to take the coherent form which all of us wanted. Certainly, I am not satisfied with the manner in which I was able to present the individual arguments on the separable points. However, I am very grateful to the noble and learned Lord for indicating that one way or another we will be able, when we return to this matter more maturely on Report, to look at the remaining issues that will be outstanding—because they are not all going to be raised again—and deal with them coherently and finally at that stage.

[Lord Wallace of Tankerness]

I concur with the noble and learned Lord and perhaps we will have a bigger attendance, although that should not in any way diminish the quality of the contributions we have had this evening, because these are important issues. With these words, perhaps we can confirm that Clause 17 will not stand part of the Bill.

[The Lord Speaker (Baroness D'Souza)]

My Lords, for the avoidance of doubt the Question is that Clause 17 stand part of the Bill. As many as are of that opinion will say Content; the contrary Not-Content.

[Noble Lords]

Not Content.

[The Lord Speaker]

The Not-Contents have it.

Clause 17 disagreed.

Amendments 40 and 41 had been withdrawn from the Marshalled List.

[The Lord Speaker]

In Clause 18, Amendments 42 and 43 not moved?

[Lord Foulkes of Cumnock]

Not moved.

[The Lord Speaker]

The Question is that Clause 18 stand part of the Bill. As many as are of that opinion will say Content.

[Noble Lords]

Content.

[The Lord Speaker]

The contrary Not-Content. The Contents have it.

Clause 18 agreed.

Clause 19 : Power to vary retrospective decisions about non-legislative acts

Amendment 44 not moved.

Clause 19 agreed.

18:44

Clause 20 : BBC Trust member for Scotland

Amendment 44A

Moved by

[Lord Sewel]

44A: Clause 20, page 14, line 6, leave out “the agreement of” and insert “having consulted”

[Lord Sewel]

My Lords, my mind goes back to consideration of the Scotland Bill in 1998. Some things are the same and some things change. What is the same is that now we are reduced to a relatively small House; what is different is that in 1998 our deliberations were at 2 am—when we used to carry on till that time—and now it is 6.45 pm. Nevertheless, as they say, I am sure that we will be able to make some progress.

The amendment deals with the appointment of what is called the BBC Trust member for Scotland. In olden days it used to be referred to as the “Scottish governor” of the BBC. At the moment the Bill says:

“A Minister of the Crown must not exercise without the agreement of the Scottish Ministers functions relating to selection for a particular appointment”,

and then goes on to explain. My amendment would take out “agreement” and put in “consultation”.

That is partly because of something that happened way back in 1974, when local government in Scotland was reorganised. I remember going to a conference of the good and the great, where the whole discussion was about the relationship between the two tiers of local government in Scotland, the regions and the districts. I remember a very distinguished civil servant at the time saying, “Given good will, the relationship between the two tiers of local government would work very well indeed”, and a grizzled chief town clerk—those were the days when we had town clerks rather than chief executives—saying that in his experience the last thing that you could count on in the relationships between local authorities was the existence of good will.

I am not daring to say that that typifies the relationship between the Scottish Parliament and the Parliament of the United Kingdom, or between Scottish Ministers and UK Ministers, but having an appointment that depends upon the agreement of two Ministers from different Parliaments and maybe of different political hues, as sometimes happens in this House, creates at least the opportunity—I put it no stronger than that—for mischief-making. In other words, it is possible to generate a major row or a clash over something relatively minor, so that what perhaps starts off as an irritant becomes a major issue of principle. Basically, let us avoid that; let us avoid creating a structure that offers that possibility.

By all means let us have consultation. My amendment would mean that the Secretary of State had consultation with Scottish Ministers. To be honest, I would prefer the Scottish Minister to have the decision rather than the Secretary of State, if we got away from the business of agreement. My first position is the Secretary of State and my second position is Scottish Ministers. I just want to avoid the opportunity—the invitation, almost—to create a fuss over something where it should not exist.

[Lord Boyd of Duncansby]

My Lords, there is an important point in what my noble friend says. The Calman commission recommendation was that:

“The responsibility for the appointment of the Scottish member of the BBC Trust should be exercised by Scottish Ministers, subject to the normal public appointments process”.

There is no suggestion there that it would be by anyone other than the Scottish Ministers. Perhaps in addressing my noble friend’s point, the Minister could also address the issue of why there has been a difference of approach in the Bill from that of the Calman commission’s report.

[Baroness Rawlings]

My Lords, I am most grateful to the noble Lord, Lord Sewel, for putting down his amendment as it gives me the opportunity to clarify Her Majesty’s Government’s view on this delicate point.

Clause 20 will make certain that the Secretary of State has to seek the agreement of Scottish Government Ministers in the process of appointing the BBC Trust member for Scotland. Currently, the Scottish Government are involved in the appointment process on an informal basis. The clause will formalise the involvement of Scottish Ministers in the appointment process and gives them the legislative basis to undertake their responsibilities in relation to the appointment process.

Under the terms of the BBC charter, the Trust member for Scotland must be qualified by virtue of his knowledge of the culture, characteristics and affairs of the people in Scotland and his close touch with the opinion of that nation. Therefore, we feel it is preferable that Scottish Ministers should have a significant role in agreeing the appointment. In answer to the noble Lord, it is highly unlikely that the situation would arise in which they would fundamentally disagree over the appointment of a candidate. If Scottish Ministers do not give their agreement to the proposed DCMS appointment of the BBC Trust member for Scotland, they would need to provide justification for that. Both sets of Ministers have the same interest in not wanting to leave the seat empty. The opportunity is primary for a member of a UK body—that is, the BBC Trust. Furthermore, broadcasting remains a reserved matter, something that the Calman report was very clear should remain the case, and we are following that principle. On this basis, the UK Government believe it is important to retain the ultimate responsibility for the appointment.

This amendment would place a duty on the Secretary of State only to consult Scottish Ministers in appointing the BBC Trust member for Scotland, rather than seeking their agreement to the appointment. It is our view that this does not give the Scottish Government sufficient involvement in the appointment process. Securing the agreement of the Scottish Government is the appropriate way of involving them in the appointment process for the BBC Trust member for Scotland. The existing provision gives the Scottish Government an important and appropriate power and the UK Government do not wish to weaken this. I hope that this satisfies the noble Lord, Lord Sewel, and I urge him to withdraw his amendment.

[Lord Sewel]

My Lords, this has been a short debate so I do not even have to thank anybody for taking part in it. I think this is one of those occasions where that well known double positive, which is in fact a negative, comes into play with reference to a fundamental disagreement between the two parties, to which the comment is, “Aye, that’ll be right then”. I very much think that there is indeed the possibility for that level of disagreement. I know that this looks likes an enormously trivial matter but I ask the noble Baroness at least to reflect on it because if we do not have a clear focus on where responsibility lies—that is, the relevant decision is taken by one person in consultation with another—I am afraid the Government may live to regret that state of affairs.

Eagle-eyed noble Lords will note that I ought to have tabled a similar amendment to Clause 21, which relates to Gaelic broadcasting. However, I did not do so because I was totally incapable of pronouncing the name of the organisation involved.

Amendment 44A withdrawn.

Clause 20 agreed.

Clause 21 agreed.

House resumed.

Welfare Reform Bill

Thursday 2nd February 2012 Lords Chamber

Returned from the Commons

The Bill was returned from the Commons with amendments.

House adjourned at 6.55 pm.