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.
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.
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.
“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.
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.