Lord Wallace of Tankerness
That this House takes note of the constitutional future of Scotland in the light of the referendum on 18 September.
Baroness Williams of Trafford (Con)
My Lords, there are 40 speakers for today’s debate. If Back-Bench contributions are kept to around eight minutes, the House should be able to rise at the target time of 10 pm. This advisory time does not apply to the movers of both Motions, my noble and learned friend Lord Wallace of Tankerness and my noble friend Lord Lang of Monkton, or to the opposition winder, the noble Lord, Lord McAvoy.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I thank noble Lords who are attending and intend to participate in this important debate. With some 85 days to go to the referendum, it is important that your Lordships’ House has an opportunity to express views on this most fundamental question facing the people of Scotland.
I welcome the fact that the debate is linked to the House of Lords Constitution Committee report on the constitutional implications of the Scottish referendum. I thank the committee for this report, not least the noble Baroness, Lady Jay, who chaired the committee. I look forward to the speech of my noble friend Lord Lang of Monkton, who now has the distinction of chairing that committee, and to the speeches of many of its members who are here to take part. The report is a very thorough and important contribution to the referendum debate and took evidence from a broad range of witnesses, including respected academics and Ministers from both the United Kingdom and Scottish Governments. The United Kingdom Government have until 16 July to respond to this report, and I can confirm that we will publish our response in advance of that date. I do not wish to pre-empt what will be said by my noble friend Lord Lang and others who wish to reflect on the report, but will respond in my closing remarks to the points they make.
As I indicated, it is now less than three months— 85 days—until the people of Scotland take the most important decision a country can ever be asked to take—whether we decide to stay in the United Kingdom family, or to leave and go it alone. I passionately believe in Scotland being within the United Kingdom, not because of dogma, nostalgia or ideology but because of what the United Kingdom means in the here and now, and what we can continue to achieve together as we go forward into the future. I believe in the contribution we have made over the past 300 years, along with our friends and families across England, Wales and Northern Ireland—our common effort to create and share something bigger that serves us all well. Together we can go on creating more, delivering more, and quite simply being more than we would ever be as separate states. Perhaps for too long Parliaments and Governments have allowed to go unspoken the contribution that Scotland makes to the United Kingdom; perhaps they have been equally silent on the benefits Scotland gets from being part of the United Kingdom. The referendum has focused our minds on what these benefits are.
Those of us who reside in Scotland will receive a booklet through our door entitled What Staying in the United Kingdom Means for Scotland. The booklet is going to every household in Scotland because we want everyone in Scotland to have the opportunity to make an informed decision in September, ensuring that voters no longer feel they are uninformed on the case being made by the United Kingdom Government. It is a booklet that sets out the facts in clear and simple terms, covering currency, pensions, trade and defence. We believe that the evidence is overwhelmingly clear. The evidence is also overwhelmingly positive: Scotland is better off staying in the United Kingdom and having the best of both worlds. We have more opportunities and greater security as part of the United Kingdom, while also having a strong Scottish Parliament with responsibility for important matters such as health, education, justice and transport.
As part of the United Kingdom, the powers of the Scottish Parliament will increase: we are already delivering the largest transfer of financial powers in 300 years, as set out in the Scotland Act 2012. Those powers will make the Scottish Parliament accountable for raising revenue, as well as spending public money. More powers will follow. That is the firm commitment of all three pro-United Kingdom parties in Scotland—not just by the separate commitments that each party has made, but by their united pledge to deliver further powers in the event of a no vote. This firm commitment to devolution, shared by both the Prime Minister and Deputy Prime Minister, is no doubt something that may be reflected on in this debate. I see that my noble friends Lord Strathclyde and Lord Purvis of Tweed are down to speak; they have made important contributions to their respective parties on this issue.
The important point about the booklet we are sending to every household is that it is not based on mere assertion or speculation, which so many of the Scottish Government’s proposals have been based on in this debate. Their 670-page White Paper included only one page of costings and projections, based on just one year’s financial information. In sharp contrast, our material draws on evidence from the Scotland Analysis series. I welcome the fact that the Constitution Committee’s report gave proper credit to that series, which concluded last Thursday with the launch of the summary paper by the Chief Secretary to the Treasury. That paper—number 15 in the series—is the conclusion to a series of papers that has been widely lauded as a comprehensive and detailed analysis of Scotland’s place in the United Kingdom. You might choose to call it “project fact”: more than 1,400 pages of analysis, citing hundreds of independent experts and organisations. The series has provided the evidence base for the positive case I wish to outline—the positive case for Scotland remaining in the United Kingdom.
I first highlight the positive economic case. Scotland is the wealthiest part of the United Kingdom outside London and south-east England. Scotland has the highest employment rate of all the nations in the United Kingdom—it is even higher than that of the United States of America. Scotland has a lower unemployment rate, at just 6.5%, than the UK as a whole, at 6.9%. Scotland is part of one of the six richest economies in the world. All this, and much more, has been achieved as part of the United Kingdom—because of the United Kingdom, not in spite of it. Scotland’s economy is not held back by our position in the union. That is an unfounded assertion that those seeking independence regularly repeat.
Let us be clear: being part of the larger United Kingdom economy provides Scotland with jobs, stability and security. It provides a recovering domestic market. In 2013 Scotland exported £50 billion of goods and services to the rest of the United Kingdom—four times more than Scotland’s exports to the rest of the world—and imported £63 billion of goods and services from the rest of the United Kingdom. It is a domestic market that saw, in 2011, 33,000 people of working age move from other parts of the United Kingdom to Scotland, and another 35,000 move in the opposite direction. It is estimated that some 30,000 people travel in and out of Scotland to work each day. Why would we want to risk the protection that the UK economy gives not only Scotland, but England, Wales and Northern Ireland? Why would we want to put an international border in the middle of all this?
Critically, why would we want to lose the formal use of the United Kingdom pound? Let us be absolutely clear: in the event of independence, there will not be a currency union. I do not believe that that would be in the interests of Scotland or the continuing United Kingdom. Scotland would have no control over mortgage rates, and would be binding its hands on tax and funding for vital public services.
I did a Q&A session with some law undergraduates at Aberdeen University last autumn when the question of the currency came up. I made the point that the problem with a currency union would be that there would be no Scottish control over mortgage rates as well as limitations on tax and public spending. I said I could not understand why any self-respecting nationalist would want to sign up to that. At the end one of the undergraduates came up to me and said, “I am a self-respecting nationalist and I agree with you”.
The continuing United Kingdom would surely not put its taxpayers at risk of bailing out a separate state and its banks. It is inconceivable that Parliament would pass it or that the people of the continuing United Kingdom would accept it. That is why all three of the main political parties have ruled it out. It is economic issues such as this, which impact on our daily lives, that affect the decisions of voters, and for many, personal issues, such as whether we would be better or worse off in an independent Scotland. That question once again provides us with a positive case to vote no. By remaining part of the United Kingdom, people in Scotland will benefit from what has been labelled the “UK dividend”, which is worth £1,400 per year in lower taxes and higher public spending to every Scot.
This £1,400 derives from the clear economic benefits that Scotland gains from being part of the UK: a strong fiscal position; a large economy able to manage the volatility of declining oil revenues; stable borrowing costs; policies which are costed within the current economic climate; and a broad tax base, able to effectively deal with an ageing population.
I am not claiming, and the Government have not claimed, that Scotland could not or would not be able to be a separate state—of course it could. But it is important, too, to face up to the realities and acknowledge them. We must combat the many assertions so often alluded to by the Scottish Government. We must not allow those who raise reasonable questions or concerns to be silenced by intimidation or fear.
It is not only the economic case that demonstrates why we are truly better together. I am sure that during today’s debate we will hear arguments covering a full range of topics—the European Union, for example. The UK exerts its influence in Europe on behalf of Scotland and all parts of the UK on issues that matter to people and businesses in Scotland, such as budget contributions, fisheries and agricultural subsidies. This influence is exerted in Brussels, Strasbourg and across all member states. It is influence which ensures that Scotland has a loud voice at the top table, and will continue to do so as part of the UK.
It is a different story for an independent Scotland. First, there is the question of application. All 28 member states need to agree the process and the timescales. There is no automatic entry or special procedure for Scotland. There are European Union-wide rules that plenty of others have had to follow, so why should Scotland expect to receive special treatment? Perhaps more crucially, there is the question of the terms of membership. No one should assume that Scotland would be able to negotiate the same favourable terms of EU membership which the United Kingdom currently enjoys: an opt-out from the euro; an opt-out from the Schengen area; and the UK’s budget rebate, which is worth more than £3 billion to the United Kingdom taxpayer each year.
Let us recall that no other member state has negotiated its own rebate. Instead, as a new member state, Scotland would have to contribute to the United Kingdom rebate like all others. Let us be clear that the rebate could not be shared between states; it is the United Kingdom rebate, and a vote to leave the United Kingdom would be a vote to lose this. However, a vote to remain part of the United Kingdom would be a vote for each household in Scotland to continue to save money as part of the UK’s rebate—a vote to keep the United Kingdom’ s opt-outs and a vote to retain a place of influence at Europe’s top table.
One of the other issues that I have encountered in your Lordships’ House and around Scotland is the implications for the defence of Scotland, and the continuing United Kingdom. That is important in two particular respects. The United Kingdom has the fourth largest defence budget in the world—£33 billion to £34 billion annually, behind only America, Russia and China. Crucially, Scotland benefits and contributes to the full range of these defence capabilities. Scotland benefits by having the security of the United Kingdom defence forces fighting for our common values and interests, wherever needed, across the world—both in combat and peacekeeping activities.
Scotland contributes to this through its 11,100 Regular Armed Forces based in the country, rising to 12,500 by 2020, alongside thousands of reservists. This is all supported by a thriving defence industry employing around 12,600 people. Many of these jobs are at HM Naval Base Clyde. We need to be clear—and again to avoid the spread of assertions from the Scottish Government and those who would urge us to vote for independence—that companies based in an independent Scottish state could no longer be eligible for contracts that the United Kingdom chose to place domestically for national security reasons. Other than in world wars, the United Kingdom has not built a complex warship outside the United Kingdom since at least the start of the 20th century. Where they could continue to compete, Scottish yards would be pitching for business in a competitive international market dominated by major economic powers. That is not, as some would say, scaremongering: it is a statement of fact. It is important that we get that across.
In addition to the strength and bravery of our defence forces, the United Kingdom is a soft power superpower. Our culture, education, business environment, values and heritage help us to bring influence throughout the world and help us to use that influence for good. The United Kingdom is the second largest donor of international aid in the world—aid administered from East Kilbride in Scotland. By 2015, this United Kingdom department, based in Scotland, will have helped to immunise 55 million children against preventable disease; will have helped to save the lives of 50,000 women in childbirth and a quarter of a million new-born babies; and 60 million people will have access to clean, safe water, thanks to the United Kingdom’s aid programme.
Together, we have championed democracy and the rule of law around the world. We campaigned against slavery in the 18th century and drafted the European Convention on Human Rights in the 1950s. Together we have resisted invasion and conquest. We did not fall for the ideologies which blighted so many lives in the 20th century but together made sacrifices in opposing them.
However, it is not only our heritage and our history. A more recent example is the United Kingdom’s Preventing Sexual Violence initiative. This was the core theme of our presidency of the G8 in 2013, leading to a new United Nations Security Council resolution and a United Nations General Assembly declaration on sexual violence within conflict, which of course led to the summit hosted by the Foreign Secretary and Angelina Jolie earlier this month. The United Kingdom was to the fore among the states which launched the campaign for the United Nations Arms Trade Treaty, which was finally adopted last year.
I am not claiming that an independent Scotland would walk away from these values that it has shared with us over the past three centuries—far from it. I expect it would probably sign up to them. However, it would lack the clout and influence to bring about such initiatives and, rather, as a consequence of independence, would possibly reduce the United Kingdom’s ability to promote justice in the world.
When we say that Britain is a force for good in the world and that it punches above its weight on the world stage, it might seem like a soundbite but it is true. We are an influence for good in the world and we do punch above our weight. This has been recognised. Although they have said that it is a matter for Scotland, what Britain achieves together has been recognised in recent weeks by President Obama, by Hillary Clinton and even by his Holiness the Pope, who all admire the strength of the United Kingdom and believe that we—both an independent Scotland and the continuing UK—would be weaker without each other. We should be mightily proud of our role across the globe, a role that we play together as a result of being a United Kingdom. Together, over three centuries, we have made one of the great states of the modern world; we continue to be a force for good in the modern world; and I am confident that together we will continue to be so for many years to come. I beg to move.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have taken part. It has been a remarkable debate in the quality of the contributions. Indeed, as in some of our earlier debates on this subject, we have had a range of very thoughtful contributions from noble Lords on all sides of the House, from all parts of the United Kingdom—Scotland, Wales, Northern Ireland, England and, indeed, Cornwall. That has enriched our debate.
One of the most important things that came through was the number of people who talked of their own experience. The noble Lord, Lord Soley, talked about working in Scotland as well as in England. The noble Lord, Lord Judd, talked about his family and what makes him what he is—a product of this United Kingdom. My noble friend Lord Dobbs said that he was a full-blooded Englishman but nevertheless has a great affection for and affinity with what we have achieved as a United Kingdom.
My noble friends Lord Glasgow and Lord Purvis and the noble Lord, Lord Kerr of Kinlochard, said that what they so much regret about the referendum debate is almost having to choose between being British and Scottish, whereas most of us think we can be British as well as Scottish—and indeed, European—whatever part of Scotland we come from. The noble Lord, Lord McConnell, talked about the strength and diversity within the United Kingdom. In spite—or perhaps because—of that diversity, we are a United Kingdom. We can celebrate the diversity and our unity.
I particularly thank my noble friend Lord Lang of Monkton for his reprise of the recommendations of the Constitution Committee’s very valuable report on the constitutional implications of the referendum and, specifically, of a yes vote. The Constitution Committee of your Lordships’ House has a well deserved reputation for full and detailed examination of key constitutional debates that we face in the UK. This latest report discussed in today’s debate is no different.
As I indicated in my opening speech, we will offer a full written response in advance of the due date of 16 July. The noble Lord, Lord McConnell, asked about that. I understood that the noble and learned Lord, Lord Morris, might have thought that that was a response to the McKay commission, so I make it clear that it is a response to the report that we are debating today.
I will offer a few reflections on behalf of the Government because the report rightly highlights that the constitutional stakes could not be higher. A yes vote in September would have a profound impact not just on Scotland but on people right across the United Kingdom. Those implications would be far-reaching and would extend far beyond constitutional points—to the economy, our place in the world, and our relationships with one another across these islands.
However, as the committee notes, at its very core the implications are set out in law; and it would be to the law that we would have to turn. Successive Governments have been very clear that it is for people in Scotland to decide if they wish to remain a part of the United Kingdom, or if they wish to leave and go it alone. That is why I say to the noble and learned Lord, Lord Morris of Aberavon, who indicated that the Welsh were not involved in the agreement signed in Edinburgh in October 2012, that it has been the view of successive Governments that if the people of Scotland wish to leave they should not be held in the union against their will. That was the background to the agreement.
However, as my noble friend Lord Purvis pointed out, it is one of the strengths of the union that, because we have established the rule of law and the basis of democracy, we are confident that these matters will be determined through the ballot box and not through means by which other countries in history have sought to claim their independence.
The referendum on 18 September will determine this question. I say to my noble friends Lord Shipley and Lord Caithness that, in a debate where both sides are almost invariably at odds with each other, the one thing that the two Governments have never disputed is that there should be only one referendum. It is important to recognise that if Scotland votes yes on 18 September it will be not only for Christmas, as one noble Lord said in his contribution, but decisive. The agreement reached was intended to be decisive and would be respected. The noble Lord, Lord McFall, asked whether that was set down when it was signed up to. In fact both Governments have said that it would be a decisive referendum that would be respected by both sides. Therefore one would expect that a no vote would be respected by those who have campaigned for a yes vote.
However, as the committee notes at paragraphs 38 to 43, if there is a yes vote, legislation delivered through this Parliament will be required to take Scotland out of the United Kingdom and to establish a new, separate state. I shall come later to the point raised by the noble and learned Lord, Lord Hope. The committee recognised that the extent and scope of that legislation may be very limited. Many subsequent orders will be required but the legislation itself could be quite limited. Much will depend on the agreement reached.
As I have said in your Lordships’ House on a number of previous occasions, these negotiations cannot begin in advance of the referendum as we must not pre-empt the outcome of the negotiations. To do so would require the United Kingdom Government to put themselves in the shoes of a Government of the continuing United Kingdom minus Scotland. It would require the United Kingdom to act in the interests of only one part of the United Kingdom rather than the whole of the United Kingdom. To do so in advance of a referendum would be to deliver exactly what the nationalists want—a United Kingdom that excludes Scottish interests and acts only in the interests of England, Wales and Northern Ireland. That is the reality of independence: it means that there will be two separate states, and where you have two separate states you have two separate sets of interests. Sometimes they will be mutual, sometimes not.
Later in the committee’s report the question of who should make up the negotiating team for the rest of the United Kingdom was raised. As someone who has represented a Scottish constituency in the United Kingdom Parliament as well as in the Scottish Parliament, and as someone who will continue to be resident in Scotland after the referendum, whatever the result, I find the report’s recommendation on the role of Scottish representatives and the exclusion of those who would have a conflict interest very compelling.
I turn now to the points highlighted by the committee, including representation of Scotland within the UK Parliament and by the UK Government in the period between a referendum which endorsed a yes vote and independence day. In paragraphs 56 to 58 of the report the committee raises the risk of constitutional limbo. This issue was raised in his introductory speech by my noble friend Lord Lang, by the noble Lord, Lord Kerr, and by the noble and learned Lord, Lord Cullen of Whitekirk. I have looked back at the context in which my right honourable friend the Secretary of State for Scotland answered that question. It was in the context of negotiation, whereas, as I have just said, you cannot have negotiations where there are different sides of the argument.
However, to make it clear, during any negotiations Scotland would still be part of the United Kingdom and public services would be delivered as they are now. This means that the Scottish Government would continue to be responsible for health, education, justice, rural affairs, housing and transport in Scotland as well as the other devolved matters, and the United Kingdom Government would continue to be responsible for reserved matters. I do not think that the noble and learned Lord expected the Electoral Commission statement to contain the whole list of Schedule 5. However, the key ones are there and there is nothing sinister about the ones that were mentioned or not mentioned. The United Kingdom Government would continue to be responsible for reserved matters, including defence, security, foreign affairs and the constitution, plus pensions, benefits and most tax powers up to the date when Scotland became an independent state.
During the negotiations, the two Governments would continue to discuss any policies of either that affect the responsibilities of the other. Equally clear is the reality that a vote to leave the United Kingdom is a vote to leave its institutions, including the Houses of Parliament. The timing of any changes would have to be settled in the event of a vote for independence.
I sincerely hope that there is a clear endorsement—a view expressed by all noble Lords with the exception of the noble Lord, Lord Elis-Thomas—of Scotland’s place in the United Kingdom. If there is not, that is when the negotiations will begin. I suspect that they will take as long as necessary to ensure that both sides are content, rather than fitting neatly into a timetable laid down by the Scottish Government. I hope that that answers the question raised by noble friend Lord MacGregor. The noble Lord, Lord Robertson, with his experience of negotiating seven NATO entries, indicated that that was not by any means an easy process. As the noble Lord, Lord Kerr of Kinlochard, pointed out, as did my noble friend Lord Garel-Jones, negotiation of entry into the European Union is by no means a straightforward matter either.
As people have said before, it is the deal in any negotiation that is important and not the date. With regard to the negotiations themselves, as the Constitution Committee report notes, the starting point for them is predetermined by the legal position that underpins all of this debate. The first of our Scotland analysis papers dealt with the legal and constitutional position of Scotland within the United Kingdom and the implications of independence. This was the right place to start, because it is from the law that political realities and experiences will flow. The legal reality is clear: the rest of the UK would be the continuator state in the event of independence. Scotland would leave and become a new successor state. I welcome the committee’s clear endorsement of this position in the first of its conclusions.
This key legal point has a number of ramifications. The United Kingdom would continue to be a member of all the international bodies to which it is currently party: the European Union, permanent membership of the Security Council of the United Nations, NATO, the G7 and the G20. As a new successor state, Scotland would need to apply for and seek new terms of membership. Those negotiations cannot in turn be prejudged in the way that the Scottish Government and advocates of independence seek. As has been pointed out in this debate, 28 member states of the European Union, each of which will wish to protect and represent the interests of its citizens, will have to sign up to these negotiations. Many of these states have had to accept terms of EU membership from which the Scottish Government expect to be exempt.
In the previous debate I did not wish to seem dismissive of the points made by the noble Lord, Lord Kerr of Kinlochard. I hugely respect the experience that he brings to these matters, but it would not be right to speculate on how negotiations could work. Previously I perhaps raised an eyebrow more with the idea that the Scottish Government would find it acceptable for the United Kingdom Government to negotiate on their behalf: I just think that you need to say that there could be some political issues around that, but I certainly do not dismiss lightly what the noble Lord, with his experience, says.
As I noted at the start of today’s debate, the Government will respond in full to the committee’s recommendations, ahead of the response deadline. I hope that I have given some indication of our likely response to some of the key points made by the committee and repeated during this debate, and a clear sense of the approach that the United Kingdom Government are taking on these issues.
I turn to some of the other points that have been raised. In reference to the Edinburgh agreement I indicated that it is one wherein the United Kingdom and Scottish Governments agreed to work together to ensure that the referendum on Scottish independence could take place on a legal basis. I think that the noble Lord, Lord Foulkes, thought that we had been tricked into it. Noble Lords might want to think about this for a moment. With the SNP having won—with a manifesto commitment to a referendum—a majority of seats in the Scottish Parliament, in which the noble Lord, Lord Robertson, and I have some responsibility for the electoral system used, neither of us or many others thinking that any party could win a majority, it is not unreasonable that the referendum was facilitated. I rather think that Mr Alex Salmond, with the cunning wiliness referred to by the noble Lord, Lord Foulkes, hoped that the United Kingdom Government would say no and give him ever more of a grievance.
Lord Foulkes of Cumnock
A 45% vote on a 50% turnout is not an overwhelming mandate. I am not saying it is overwhelming in one direction or the other but it is arguable that it did not provide the mandate and there could have been further discussions. I also said that in the discussions the UK Government seem to have conceded on every issue—issue by issue.
Lord Wallace of Tankerness
My Lords, I do not accept that. In a PR election, to win an outright majority of seats—the political reality was that there was an expectation that if we had sought to thwart that, it would have played into their hands. There was the possibility that they would have run their own referendum, which we would have argued was not legal, and we would have been embroiled in a constitutional mire. The fact is, there is a binary question, yes/no, but I rather think that some in the nationalist cause would have liked to have muddied the waters with a third question and allowed us all the time to negotiate among ourselves what the third option would be, thus taking our eye off the ball and not tackling the main issue, which is whether Scotland should be an independent country.
The noble Lord, Lord Birt, made important points about the BBC. As the committee indicates, that is one of the institutions that would belong to the continuing state. He highlighted the detriment that Scotland leaving the UK would cause the BBC: 10% less funding for BBC programmes and for the rest of the UK. He also pointed out, importantly, that of course the BBC is independent of government and any negotiations it had with the Scottish broadcasting service would be akin to the kinds of negotiations that I am sure it has with many other national broadcasting companies throughout Europe and the rest of the world. Unlimited access to BBC services in an independent Scotland would cost money, and it is naive and indeed misleading for the Scottish Government to pretend that everything would just go on as before.
The noble Baroness, Lady Adams, asked about English universities. Access for Scottish students would be the same as for those from other European Union countries. The other thing that is slightly odd is the Scottish Government trying to pretend that English students coming to Scottish universities could be treated differently from those from other European Union countries.
Baroness Adams of Craigielea
On that point, given that if Scotland voted yes it would no longer be part of the European Union, how then would Scottish students be treated?
Lord Wallace of Tankerness
Indeed, if Scotland was a member of the European Union, they would be treated the same as everyone else from there; if it was not, they would be treated the same as international students from India or wherever. Of course, if Scotland were to be part of the European Union—a point that I think the noble Lord, Lord Foulkes, is about to latch on to—the idea that you could allow free tuition for students from every other European Union country and charge English students does not have any sound basis. It is difficult to say that you want to enter into a social union with other parts of the United Kingdom but one of the first things you do is charge its students when you are not charging anyone else.
Lord Foulkes of Cumnock
I know it is difficult but it has already been said. Mr Salmond has said that they would not get free tuition—that English, Welsh and Northern Irish students would not be treated as other European students. That is what we are facing. We are doing everything by the book. We are treating these matters honourably. People on the other side of the discussion are not.
Lord Wallace of Tankerness
My Lords, there is such a thing as the European Court of Justice, and anyone who attempted to fly in the face of what most people would think of as accepted European Union law may find that the law caught up with them.
My noble friend Lord Cormack and the noble Baroness, Lady Adams, talked about their grandchildren and how they do not wish to see opportunities cut off and cannot understand why we would want to build barriers. That has been reflected in many schools, where there have been substantial no votes. It shows that in an era when young people can communicate so easily, when the communication barriers have been broken down because of modern technology, the idea that you would start erecting barriers is something that many of them just cannot comprehend. That is a great strength for our union as we look forward.
My noble friend Lord Caithness asked about the draft Bill. I confess that we have not yet done any analysis of it. My noble friend Lord Lester of Herne Hill, however, was telling me the other day that he has already identified two or three inconsistencies with the European Convention on Human Rights, and if my noble friend has identified them, that probably means that they are right. It is not a very good start for a constitution if it seems to fall foul of the European Convention on Human Rights.
The noble and learned Lord, Lord Hope of Craighead, raised the question about whether it could be a Section 30 order. It is clear that independence cannot just be asserted. The terms of an agreement reached between the representative of an independent Scotland and a continuing UK would have to be that: an agreement. I have already indicated what the position would be with regard to the period between the date of a referendum if there were to be a yes vote and the date of independence, and all the responsibilities that the United Kingdom Government would have. The quote that I gave was a direct quote from the statement given jointly by both Governments to the Electoral Commission, so the Scottish Government themselves have signed up to that.
The noble and learned Lord, Lord Cullen, made a point about how long it took to get that agreement, and that was just an agreement to make a statement. That might put into context how long it might take to negotiate an independence settlement. If Scotland chooses to leave the United Kingdom, it must be prepared to do so whatever the terms, because the terms cannot be known in advance.
As the report of the Constitution Committee indicates, there could be possible difficulties with a Section 30 order if it was challenged in the courts that the use of the Section 30 order had gone beyond what Parliament intended an order to do—if it were bringing in independence when in fact that was clearly never the intention of Parliament.
Lord Hope of Craighead
To be clear, is the Minister saying that what is contemplated, at least by the Government, is that there would have to be legislation through both Houses of Parliament in order to facilitate the independence Bill that is now on the table?
Lord Wallace of Tankerness
I think I said in my evidence to the committee that there was a possibility of a Section 30 order but that there are difficulties with that. I indicated that there might have to be very limited legislation, if only to allow the Scottish Government to put together a negotiating team and enter into negotiations. As the noble and learned Lord probably knows better than anyone in the House, along with the noble and learned Lord, Lord Cullen, the propensity for some people to litigate in areas like this could be very great. If that were the situation that we were in, although we sincerely hope that it will not be, it would be important to put the negotiations on a proper legal footing so that they could not be subject to some further challenge.
Lord Purvis of Tweed
I am conscious not to take up more time. Following on from the point made by the noble and learned Lord, Lord Hope of Craighead, the Scottish Government have put forward, in the documents that have been referred to, the assertions that the Scotland Act would be revised again. They have said that, together with the enactment of the Scottish independence Bill, the existing Scotland Act would be amended, but in the document they have not said by whom and when.
If I am correct in thinking that the concordat still exists between the Scottish Government and the UK Government that any proposals put forward by the Scottish Government that may impinge on reserved matters should be discussed in advance with the United Kingdom Government, was there any discussion or any forenotice by the Scottish Government that they would be bringing forward this matter, drafted by civil servants and presented to the people of Scotland as a Scottish Government paper?
Lord Wallace of Tankerness
I can confirm that there were no prior discussions with the United Kingdom Government on that matter. Finally—
Lord Forsyth of Drumlean
Surely my noble friend is not telling the House that in the event of Scotland voting to leave the United Kingdom, that would not be a matter that would require legislation approved by both Houses of Parliament?
Lord Wallace of Tankerness
I made that clear earlier: we are talking about an interim Bill. As I indicated earlier, in response to the point made by my noble friend Lord Lang of Monkton, yes, we have indicated that there would have to be legislation. The scope and extent of it would very much depend on the terms of the agreement reached; they may not have to be very extensive. However, I confirm that there would have to be legislation to bring about independence. I hope that that is clear and unequivocal. My noble friend looks doubtful but I am saying that there would have to be legislation to bring about independence.
Lord Forsyth of Drumlean
That is a bit weaselly, because it suggests that a deal could be done between the two Governments and then there would be a kind of confirmatory piece of legislation. If we are talking about breaking up the United Kingdom, this is a matter not just for the Executive but for Parliament as a whole.
Lord Wallace of Tankerness
My Lords, of course the Executive are answerable to Parliament. That is self-evident, as we well know. It is impossible to speculate on this because we do not actually know what the terms would be. I am just confirming that there would have to be legislation. I cannot speculate about what would be in the legislation because I have no clue what kind of negotiations there would be or what agreement would be reached. To try to speculate would go against the grain of what we have said about there being no pre-commitment or pre-negotiation.
Lord Foulkes of Cumnock
I am sorry to keep everyone but this is a very crucial matter—as the noble Lord, Lord Forsyth, indicated. The noble and learned Lord, Lord Wallace, has said that the Government have not yet considered fully the terms of the interim so-called constitution drafted by the Scottish Government. Perhaps he could tell us today that the Government will look at that, and report back to this House on it, and then we can have a further debate. We really must consider this. As I said in my speech, we are getting bounced into one thing after another. We should be damned sure that we are not bounced into this one.
Lord Wallace of Tankerness
My Lords, we certainly shall look at it, although whether we can have a debate between now and the House rising I just do not know. However, I hope we are not confusing two things. Of course, a constitution would be a matter for the independent Scotland. It would post-date independence. I think the noble and learned Lord, Lord Hope, talked about an interim Bill, and that was what was being discussed.
Lord Hope of Craighead
I simply adopted the language of the Scottish Government. They produced this draft Bill to carry the matter forward as from independence day on an interim basis until the new constitution forecast at the end of the Bill was passed. It is incredibly important to know what we are to make of the interim Bill. Among other things, it proclaims that every Scots person is to be a citizen of the European Union as from independence day, although we all know that Scotland will not be a member of the European Union. It is full of flaws of that kind and we simply cannot give them carte blanche to pass it through without discussion.
Lord Wallace of Tankerness
My Lords, what an independent Scotland does after independence day would be a matter for an independent Scotland. I think that is common ground. If it wants to legislate nonsense then it can. That would be the decision of an independent Scotland.
Lord Cormack
I am very troubled about this, as many of us are, against the background of the deal the Government did with the Scottish Government. My friend the noble Lord, Lord Foulkes, nods vigorously. Can we at least have an absolute undertaking from my noble and learned friend that when the Government have considered this we will have a full Statement in the House and an opportunity to ask questions?
Lord Wallace of Tankerness
My Lords, I cannot make that commitment but I certainly gauge the mood of the House. If it might help, I think perhaps that at some point we have confused two different things. The point I made to my noble friend Lord Forsyth is that there would have to be legislation going through this Parliament to establish Scottish independence. That is very clear. That is what I said to the committee and I think I am right that it was accepted.
Lord Robertson of Port Ellen
The Minister says we are getting confused and he is very accurate. It seems that what the noble and learned Lord, Lord Hope, said related to what the Scottish Government might do in the Scottish Parliament following the yes vote and before independence day took place. That is where the worry comes in. What they do after independence—if that day should ever happen—is up to them but if they bounce us in the interim period by passing through the Scottish Parliament this draft constitution, then that should really worry all of us.
Lord Wallace of Tankerness
My Lords, I am very grateful to the noble Lord for clarifying that. I think that the question asked by my noble friend Lord Forsyth related to the Act enacting independence rather than independence itself. The noble Lord, Lord Robertson, is right: what happens after independence is a matter for the Scottish Parliament. What happens between a potential yes vote on 18 September and the date of independence is a different matter because the present law of the United Kingdom would still apply. As I believe that the present law of the United Kingdom, including the Scotland Act, does make provision for Section 30 orders, the orders would have to be passed—we are not changing the procedure of them—by both Houses of this Parliament, as well as by the Scottish Parliament.
I have also indicated to the noble and learned Lord, Lord Hope, that there are legal issues and doubts about whether that would be an effective way of doing it, because there is a concept that we cannot use secondary legislation to effect an outcome that is totally contrary to the intention of the original legislation—as Hadfield has it. The original legislation was not enacted to establish an independent Scotland, so using a Section 30 order to bring about de facto independence could be challengeable. That ultimately would be a matter for the courts, so I will not put it any higher than that; but such a course of action could be fraught. I hope that that is clear.
On responding to the particular points about the interim, I will bear in mind what is being sought.
Lord Forsyth of Drumlean
Before my noble and learned friend sits down, is he saying that there is no question of a Section 30 order being used to effect this?
Lord Wallace of Tankerness
Yes, that is what I said. It would not be the right way and would be susceptible to legal challenge.
The Scottish Government have set out proposals that contradict the agreement set out in the Electoral Commission statement. The Electoral Commission statement makes it very clear, and both Governments agreed, that as far as reserved matters are concerned, the United Kingdom Government would continue to be responsible for them. That is what the law is, and it will continue to be so until the date of independence.
I shall conclude briefly. We have had a very good debate, and we have been told to be positive. Such has been the success of the United Kingdom, however, that the yes campaign perhaps makes the best case for us. If one looks at the Scottish Government’s White Paper and at the yes campaign, one sees that such is the success of the United Kingdom, they want to keep much of it. They want to keep the monarchy; they want to keep the currency; they want to keep the Bank of England; they want to keep the National Lottery; they want to keep the NHS blood transfusion and transplant service; they want to keep the Royal Mint; they want to keep the research councils; they want to keep the air and maritime accident investigation branches; they want to keep the Committee on Radioactive Waste Management; they want to keep the Green Investment Bank; they want to keep the Met Office; they want to keep the Hydrographic Office; they want to keep the UK benefits system; they want to keep the DVLA; they even want to keep “Strictly Come Dancing” and “EastEnders”. What better advert can there be for the United Kingdom than how much of it the independence-minded nationalists actually want to embrace?
We have shown that we have a remarkable partnership of nations. For all our achievements and all our successes, and for all the support we give each other in difficult days, we have a United Kingdom of which we can be legitimately proud.
I apologise—I should have said more about the overwhelming challenge of a new United Kingdom. I had quite a bit to say on that. I will only say that I have heard noble Lords. Obviously, I cannot give a commitment tonight about a new convention for the whole of the United Kingdom, but I hear the comments from all round the House—cross-party and cross-country, and not just about the United Kingdom but about decentralisation. These are matters on which my colleagues in government will wish to reflect with the seriousness with which they were put forward in this debate.
I have tried to answer as many questions as I can. I sincerely hope that on the key date of 19 September we will be looking forward and not having to deal with some of the issues raised in the admirable report from my noble friend Lord Lang of Monkton and his committee.