(8 years, 4 months ago)
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Lord Foulkes of Cumnock
“Scottish Senate
(1) There shall be a Scottish Senate which shall be the second chamber of the Scottish Parliament.
(2) The Scottish Senate shall consist of 46 members, to be elected using the Single Transferable Vote system in each region of Scotland, in elections to be held on the same day as the elections for the Scottish Parliament.
(3) Each electoral region shall return the following number of Members—
(a) Central Region: 5 members;(b) Glasgow: 6 members;(c) Highlands and Islands: 4 members;(d) Lothian: 7 members;(e) Mid Scotland & Fife: 5 members;(f) North East Scotland: 7 members;(g) South of Scotland: 6 members;(h) West of Scotland: 6 members.(4) The Boundary Commission for Scotland must keep under review the regions and the number of Members to be returned for each region, and if appropriate make a report to the Secretary of State recommending changes.
(5) Any reports by the Boundary Commission for Scotland under subsection (4) are subject to the requirements, and to the provision for the implementation of recommendations by Order in Council, contained in Schedule 1 to the Scotland Act 1998.
(6) The proceedings of the Scottish Senate shall be regulated by Standing Orders agreed by the Senate.
(7) Standing Orders agreed by the Senate shall include provision for the Senate to—
(a) undertake pre-legislative scrutiny of proposed Bills;(b) consider and propose amendments to legislation agreed by the Scottish Parliament for future consideration by the Scottish Parliament before it is submitted for Royal Assent;(c) debate and pass resolutions on devolved matters; and (d) establish committees with the power to call or require Scottish Ministers to give evidence on any devolved matter.”
Lord Foulkes of Cumnock (Lab)
My Lords, if I may plagiarise Monty Python:
“And now for something completely different”.
I am going to be positive and come up with some new ideas, and try not to be repetitive. Many people here will recall that at the opening of the Scottish Parliament in 1999 the late, great Donald Dewar read the first words from the then Scotland Act:
“There shall be a Scottish Parliament”.
He went on to say, “I like that”—and we all felt much the same. But even then, with only one chamber in the Scottish Parliament, questions arose about whether there would be sufficient checks and balances.
The people who raised these questions were reassured by many other people, including from my own party and my own side, and told not to worry about it. First, we were told that that the electoral system they had devised would ensure that no party would have an overall majority—well, we know what happened to that. Secondly, we were told that the committees would have a new role and that they would be the checks to control the overweening and overpowerful Executive. But that has not been the case, as many people here will know. In fact, the irony is that in this Parliament at Westminster, the committees in both Houses have been far more powerful in controlling the Executive, challenging and questioning them, whichever Government are in power, than they have been at Holyrood. It was also agreed at the time that the electoral system would be reviewed after two elections if it did not appear to be working in the right way—but that review has not happened.
After the last election, we have effectively in Scotland a one-party state. That controversial comment has been made by a number of people and challenged by the SNP, because of course there are other parties in the Scottish Parliament, but it has an overall majority which it uses powerfully, coherently and effectively. It has decided to choose one of its number as the Presiding Officer but could have chosen someone from another party. There has never been a Labour Presiding Officer, for example, in the Scottish Parliament. When we were the largest party at first in 1999, we allowed—in fact, we encouraged and moved—the noble Lord, Lord Steel, to become Presiding Officer in the Scottish Parliament, much to the chagrin of my good and noble friend Lord Maxton.
The majority on committees is exercised powerfully. I do not know of one committee report that has been critical of the Scottish Government. The Justice Committee got nearest but was still far away.
Civil society—I had better not mention the Law Society of Scotland on this occasion—is increasingly in thrall to the one party in control at Holyrood, using, alternately, the carrot and the stick. As a result of that, there have been a number of mistakes, and the Scottish Parliament has legislated in ways that have caused tremendous problems, which I would argue would not have happened if there had been either pre-legislative scrutiny or a second look by a second chamber. Police reform is one example, and there are several examples in education, for example in the current universities Bill, which is creating huge problems already.
I will mention two specific examples, since, as we saw in the last few debates, we have so many lawyers in the House. One was the misguided attempt to abandon corroboration in Scots law—my noble and learned friend Lord McCluskey played a large part in raising concerns about this issue—which would not have happened if there had been either pre-legislative scrutiny or checks by a second chamber.
The other is the Act that is supposed to deal with sectarianism in Scottish football. As a number of Members will know, I am a great enthusiast for a particular football team, Heart of Midlothian Football Club. Unfortunately, there has been sectarianism in Scotland over time. The Government brought in the Offensive Behaviour at Football and Threatening Communications (Scotland) Act, which has been criticised not just by Celtic and Rangers but by a number of people. I read in today’s Daily Record that even Phil Boswell, an SNP MP—who is under a bit of criticism for other things at the moment—said his own party’s law on this was a “major blunder”. I would argue that that major blunder would not have happened if we had had the second chamber that I am proposing.
The second Chamber here has asked the other Chamber—the House of Commons—the government majority in it and, thereby, the Government to think again on a number of things. We asked them to think again on onshore wind after they arbitrarily cut the grants a year early. We are currently looking at votes at 16 and 17 and asking them to think again—today they were doing that and thinking again about it. Most notably, we asked them to think again about tax credit cuts, and thankfully the Chancellor did think again and decided to abandon the proposals. He would not have done that if we had not challenged the measure in the House of Lords.
This brings me to my proposals. Some people, including some of my own friends, have suggested that this is yet another ad hoc change to our constitution. I agree with that and am only doing it because that is the way we do things at the moment. I repeat what I have said on so many occasions in this House: I am in favour of a UK constitutional convention to look at things in a comprehensive way. But we are not at that position yet, as the Government have not accepted it. Everyone else—every other party and much of civil society—has accepted it but the Government have not yet been persuaded to accept it, so we have to look at this bit by bit.
I am suggesting a senate of modest size, with 46 members. I have given the number of members that would be elected in each of the eight regions of Scotland, based on the current electorate, which brings us to a total of 46. I am grateful to the Legislation Office for help in drafting this amendment. One of its suggestions was that the Boundary Commission for Scotland should be included and be given the power to look at the regions and the number of members returned from each region. I think that is right.
I suggest that it should be elected by a different system from the present Scottish Parliament, and I suggest single transferable vote. That is not to get the support of the Liberal Democrats—I have the support of the noble Baroness, Lady Suttie, who sends her apologies for not being able to be here today—but because it is the right thing to do, not in every case but in this particular one.
Also, I suggest the election should take place at the same time as that for the Scottish Parliament. One of the other criticisms I have had about my proposal is the cost of it. The cost would be reduced if the elections were carried out at the same time. There have been suggestions from my noble friend Lord Maxton and others that it might be better to have it in between elections to the Scottish Parliament, and that is something I would be willing to look at.
The senate I propose would be able to carry out pre-legislative scrutiny and review legislation. It would have debates as we do on topics of particular interest and committees with the power to call Ministers to give evidence. As I say, the one criticism I have had is that of cost. That is why the size is relatively modest. I do not necessarily think that its members need to be full-time, although that is something again that can be looked at.
We can find an existing building in which they could meet. I suggest that a wonderful place for them to meet would be the Old Royal High School, which was converted for our use as a Scottish Parliament had we voted for that in 1979. Many Members here who were Members of the other place will have been at meetings of the Scottish Grand Committee there and it worked extremely well. It looks like a parliament and senate. One noble friend who apologises for having to leave early—he expected this debate to take place a bit earlier but reckoned without some of the fights that took place opposite—suggested that there is a suitable building in Glasgow that might be used for this purpose. Certainly, that could be looked at.
In coming forward with this proposal, I looked at other countries—
Lord Forsyth of Drumlean (Con)
The noble Lord twice mentioned cost but has not told us how much this would cost.
Lord Foulkes of Cumnock
The noble Lord knows the price of everything but the value of nothing. The value of this is that it would be an extension of democracy. It would be a very small price to pay for that.
I have looked at other countries. In Ireland, all the main political parties two years ago proposed to get rid of their Senate. The Members of the Dáil wanted complete control and they held a referendum.
Lord Foulkes of Cumnock
This is the moving of an amendment in Committee. We have Report and later stages coming up, and by that time, if the noble Lord is still here and able to ask a question, I am sure he will get an answer. The cost depends on a whole variety of things and at this stage he can shake his head and put his finger up—we all know what a cynic he is. The new Minister has found out what a damned nuisance he is, as well. He is a thorn in the flesh of the Government but I will certainly not let him be a thorn in my flesh. He will get his answer in good time. As I said earlier, he wants to know the price of everything but knows the value of very little.
I looked at other countries. I looked at Ireland and in the referendum there two years ago all the main parties wanted rid of the Senate. Incidentally, all the opinion polls in the run-up to the referendum said that it would be abolished. The opinion polls in Ireland are no more accurate than they are in the United Kingdom or in Scotland. The people of Ireland decided to keep their senate; they wanted to have control over the powerful Executive of the Government in Ireland, which I was very pleased to see.
I was talking to the noble Lord, Lord Alderdice, yesterday, and he told me that in Northern Ireland from 1921 to 1975 a senate operated very effectively at Stormont, which is something that can be looked at as well. The other interesting thing, on which I conclude, because I am trying not to take up too much time after a lot of time was taken up earlier, are the other areas of devolved legislatures. Every state of the United States has two Chambers; in Australia, all of them except for Queensland have two Chambers. If it is good enough for New South Wales and Massachusetts to have that kind of democracy, and be able to pay for it, it is good enough for Scotland. This will be a great extension of democracy in Scotland; it will make sure that the kind of decisions that I mentioned, which have caused real problems because they have not been thought through, are unlikely to happen again, and I hope that it will be given sympathetic consideration by Members on all sides of this House today.
The Earl of Kinnoull (CB)
My Lords, I rise to make a few brief comments on a very thought-provoking summary from the noble Lord, Lord Foulkes of Cumnock. In my speech on Second Reading, I mentioned the issue of scrutiny, as it is a great concern to me. As I said, what concerns me is the very heavy constituency load that members of the existing Parliament have, which means that they simply do not have time to perform proper scrutiny of the legislation, of which there is an awful lot in the Scottish Parliament. I would further develop the argument to say that, if we are lumping a whole lot more powers into the Scottish Parliament, that problem is going to be exacerbated. Therefore, the quality of legislation—and I speak as a resident of Scotland—will inevitably go down.
I make a further point on the skill set required for scrutiny. I had the great benefit of watching the noble and learned Lord, Lord Hope of Craighead, prepare for today by just by chance being in and out of his office a few times. The care and precision with which he prepared today and the great scholarship that he has—reflected also by the noble Lord, Lord Norton—do not necessarily exist in the constituency MPs in the current Holyrood Parliament, but they are very necessary for the proper scrutiny of legislation, as we are doing today.
There is also an old adage about absolute power. It disappoints me that the Scottish Parliament has an absolute power today and is in many ways a more powerful Parliament and executive than this Parliament, where at least the mirror can be held up, and the Lords can say no—as they have several times already—which makes the Government reconsider things, which drives change for the better.
I want to address cost and perhaps answer the question posed by the noble Lord, Lord Forsyth of Drumlean. If it costs £200,000 per member, it would be £9.2 million; if it cost £400,000 per member, depending on what sort of Parliament you had, it would be double that, at just under £20 million. I think that the cost is likely to be in that area, but it would be small compared to the loss of things such as foreign direct investment or the economic damage inflicted by badly drafted and badly thought-through legislation. However, I have one concern: I am not sure that this Bill is the proper place for this set of thoughts, but it is certainly a very valid set of thoughts, and I thank the noble Lord, Lord Foulkes, for raising them.
Lord Lyell (Con)
I am fascinated by the marvellous remarks of the noble Lord, Lord Foulkes. I was interested that he mentioned one of my great passions, which has occupied a good bit of the Scottish Parliament and is about sectarianism at the football. Indeed, a leading sheriff in Dundee pointed out that he regarded the legislation as “mince”—I hope that is not an abusive term. It came down to the fact of lip-reading whether a supporter was singing the correct words of “The sash my father wore” or other terms which might be abusive. Leaving that aside, I commend the noble Lord, Lord Foulkes, for trying to get a revising chamber for the Scottish Parliament.
The noble Lord, Lord Foulkes, was kind enough to refer to the superb Second Reading speech of the noble and learned Lord, Lord McCluskey. The noble Lord was quite tactful not to mention that the noble and learned Lord referred to sheep—that was one of the more moderate aspects. I appreciated what the noble and learned Lord had to say. One of the points he made in that the proposal is relevant to the amendment before us. It was about the standard of pre-legislative scrutiny by the committees of existing Members of the Scottish Parliament. If the noble Lord, Lord Foulkes, believes that there is a field of 92 people in Scotland who can provide a higher standard of scrutiny—quite apart from the cost and the time involved—I salute him for his optimism, but I wonder whether, with all the guidance that many of these so-called amateurs might need, he will be able to find them.
On the other hand, I look around your Lordships’ House this evening and find my noble friend Lord Dundee. When it comes to cost, I am tempted to think of the chant “Up with the wallets of bonnie Dundee”. He might be paying, or some of us might be thought to be rich enough to pay ourselves, but I am not too sure. If your Lordships would care to glance at the Second Reading speech and comments of the noble and learned Lord, Lord McCluskey, if I were a Member of the Scottish Parliament, I would repeat the wise words of the Vietnamese gentleman Do Duck Low and stay well out of the criticisms that have been quite justifiably directed in that area. I commend the noble Lord, Lord Foulkes, for his imagination and thought, but on the other hand I dread to think what the cost might be.
Lord Maxton (Lab)
My Lords, I remember that “Monty Python” always finished with the words, “And now for something completely different”. It used to throw my late father-in-law into a paroxysm because he could not stand “Money Python”, but we all insisted on watching it. He would think it was the end and give a great big sigh of relief, and then they would go, “And now for something completely different”, and end with exactly the same thing that they had been doing for the rest of the programme.
I have three points on this amendment. First, I support it. I did not support a second Chamber in the first place when we set up the Scottish Parliament because I felt that the powers we were giving it did not warrant a second one. Now that we are giving it extra powers, that warrants having a second Chamber as a balance to the first Chamber. Secondly, I do not believe, as my noble friend said, that the elections ought to be on the same day because there is a grave danger of the political make-up of the senate being exactly the same as the Scottish Parliament and that raises problems about what it will do and how it will be a counterbalance to the main Chamber if it is of the same political complexion. It would perhaps be more expensive to have the elections in between, but they could be on a day when other elections were taking place and, of course, if it were done my way electronically with an ID card, the cost would eventually be considerably less than at present.
Thirdly, if you elect people to a position, they will insist on having more power than my noble friend is prepared to give this senate. That is what happened in the United States. Believe it or not, the original Senate in the States was appointed and had little power; it had the same sort of powers that we have here. Once it moved to an elected system, though, it became increasingly powerful, and in the end was more powerful than the House of Representatives. That, I fear, is the danger with the senate that my noble friend is proposing: eventually you will have elections and they will insist on taking more power than the major body, which is elected by a different system.
I am a first past the post man first and foremost so obviously I would like the senate to be elected that way, along with the Scottish Parliament itself; we would not be in the fix that we are now if we had had first past the post in 2007.
Baroness Adams of Craigielea (Lab)
On the point about the Scottish Parliament: if there were to be a senate, does my noble friend envisage that we would still have to retain the same numbers in the Scottish Parliament?
Lord Maxton
That is a very good point. I look forward to my noble friend Lady Adams tabling an amendment to my noble friend’s amendment on Report. It is an interesting question: why should you have the same numbers in the Scottish Parliament if you have a senate as well?
I support what my noble friend is proposing but we have to look very carefully at it. I hope to be able to move amendments on Report.
Lord Forsyth of Drumlean (Con)
I have to say I am astonished that the noble Lord, Lord Foulkes, should move this amendment at this stage of the Bill. He has spent the past two years arguing against piecemeal constitutional reform and has sat uncharacteristically silent throughout these proceedings, no doubt because he believes in what the Bill is trying to do, which is to allow the Scottish Parliament to determine its own rules and provisions, including on composition and the rest. But here he is, wanting to impose an entirely new body upon it as a second Chamber, ignoring the difficulties that this House has had with the other place in resolving the issue of what you do, if you have two elected Houses, to avoid gridlock and squabbles over powers. Quite frankly, if one were going to create a second Chamber for the Scottish Parliament, which I would have thought was entirely a matter for the Scottish Parliament, it would need to be done in a way that addressed these problems. On the basis of the performance of this House, I should think that that would take at least 100 years and still not be resolved. I find it extraordinary that, with so much to do in the Bill, we should be discussing an issue of this kind.
Also, if the answer to a problem is more politicians, you have certainly asked the wrong question, particularly in the current climate. In Scotland we are overrun with politicians: we have 129 in the Scottish Parliament and 59 MPs, and our constituents have no idea who is responsible for what or who their representatives are. Add to that some people called senators, and I think that the noble Lord will complete the task, already pretty well achieved, of having the electorate treat Members of Parliament with a certain degree of contempt and as a laughing stock.
Lord Maxton
I have to ask the Lord whether he actually believed in being a politician, democratically elected by his constituents. At the end of the day, that is what a politician is: a democratically elected representative of the people. I would not say that more is always better, but it does not necessarily follow that more is necessarily bad.
Lord Forsyth of Drumlean
To deal with the point about politicians, after I left the House of Commons in 1997—or was asked to leave by the electorate—I went to work for Flemings as a banker, and was very proud to call myself a banker. Then, when the financial crisis came along, things got so bad that I started calling myself a politician again. Then we had the expenses scandal so I decided to call myself a company director. Perhaps the noble Lord does not realise that there is a problem, not just in Scotland or in Britain but in France, America and elsewhere—you can see that in some of the eccentric choices that are being made now by the electorate—which comes from a complete contempt for the political class. At this time of all times, when money is short—and by the way, we have not seen the fiscal framework, but when the Bill goes through, money will be very short indeed in the Scottish Parliament, when it substitutes a Barnett grant for a tax base—the notion that they could find money to have an extra 40-plus politicians plus all the attendant special advisers, the machinery and the rest, is utterly ridiculous. Therefore I hope that we will not spend very much time discussing this amendment, which is a complete distraction and totally wrong.
However, the noble Lord is perfectly correct to say that there is a problem with the governance of the Scottish Parliament. Can I just gently point out who was responsible for this? When the noble Lord cited all these examples of failures of policy—I could add considerably more—where was the Labour Party? Where was the opposition in the Scottish Parliament standing up to all of this? Therefore the fault did not lie in the lack of a second Chamber but in the opposition to the SNP and in the case of my own party, which gave it the ability to be in government by supporting it in government, some criticism could be made. However, this is not an argument for a second Chamber but for having vigorous Members of the Scottish Parliament, who I hope will be elected in May, doing the job they are required to do.
As regards numbers in the proposals there is already great confusion—we will come on to this later in the Bill—about the boundaries of constituencies and responsibilities. I was very struck by a poll by ITN, when it discovered that some huge number of the Scottish electorate—90%, I think—had absolutely no idea what powers were going to be conveyed by the Scotland Bill on the Scottish Parliament. When asked, a similarly higher percentage—well over 50%—were of the opinion that whatever the powers were, they did not go far enough. Therefore there is a job to do for the Scottish Parliament in engaging with the electorate and a job for the opposition. It is true that they are failing in a wide range of policy matters, but a House of lairds—a bunch of people calling themselves senators—will not resolve this problem. Fortunately, however, it is not a problem for this House but for the Scottish Parliament.
Lord McCluskey (CB)
My Lords, I may be brief. I made points in my Second Reading speech which the noble Lord, Lord Lyell, has referred to. We are all agreed about one thing: there is a problem. Whether the unelected House of Lords is the right place to start giving a lead in that matter is something entirely different. I would not fashion the problem in precisely the words that the noble Lord, Lord Foulkes, has mentioned—the one-party state. I think I have previously used the expression that was made well known by Lord Hailsham, “an elective dictatorship”, because in substance that is what you have in the Scottish Parliament at the moment. The Scottish National Party, for its own reasons, whips its MPs so effectively that there is no dissent, and for reasons that I mentioned at Second Reading, the weakness of the opposition is palpable. There are good people and, by the way, one or two good committees as well, but the committees of which I have experience, which are largely to do with justice, are not satisfactory.
I therefore agree with the noble Lord, Lord Maxton, that there is a problem with having an elected House. The great thing about the House of Lords is that it is not elected, therefore we are not answerable to constituents, and because very few of us are left with ambition, having reached an age and a state in our careers when ambition is no longer available to us, we can say what we think. However, that is not a popular idea in the country generally.
I am not sure that I am totally committed to the idea of an elected second Chamber but there must be some system. One forgets that many of the institutions that are extremely powerful in shaping the political debate and the political results in this country are not elected at all. I mention, for example, the press, which is said to be free and independent. It may be free, and it is independent of government, but in no sense is it elected by anyone. I get no say in who appoints the editors of the Times or the Sun or, for that matter, the Daily Mail, and they have considerably more influence than this House over what happens in this country, but they are not elected either.
This may be just a start but I feel that there is a duty on those of us who share the idea that there is a real problem to publicise that problem in Scotland and to try to persuade the Scottish electorate and the people generally that it has to be tackled, although perhaps not in this way. However, I certainly support the idea that “something must be done”—an expression which I hesitate to use because of its antecedents.
Lord Purvis of Tweed (LD)
My Lords, it was fairly dispiriting to come back into the Chamber and to see our archaic language—which, as a Member of this House compared with being a Member of the Scottish Parliament, it has taken me a while to adjust to—on the annunciator. It announced that the House was “Adjourned during pleasure”, and it was dispiriting when the “pleasure” ended and the Scotland Bill was brought back to us. When I first saw that announcement on joining this House, I asked the Clerk of the Parliaments was it was. He asked me, “Didn’t you have any pleasure in the Scottish Parliament?”. I replied, “No, not very much at all”.
It was a pleasure to hear the noble Lord, Lord Foulkes. His persuasive skills are renowned but I am afraid that I am not persuaded by the case that he made. When I was a constituency Member of the Scottish Parliament, I considered it to be absolutely my duty to be as effective in that role as anyone else, but I was also aware of the pressures on constituency and regional Members of the Scottish Parliament. At one time, I was a member of three parliamentary committees: two were legislative and one—the Finance Committee—was both a scrutiny and a legislative committee. There was most certainly a strain on the number of Members.
It is worth reflecting that it was not designed to be like that. When the Parliament was established and the consultative steering group looked at the fundamental principles of how the Scottish Parliament should operate, it was designed to be a very different type of institution from the one here. There was going to be much stronger pre-legislative scrutiny and that element has been successful. This Parliament has learnt from that approach to pre-legislative scrutiny, with draft Bills now becoming the norm.
The committees in the Scottish Parliament, because of its nature, are both legislative and scrutiny committees. They were designed to be the strength of the Parliament. In a previous element, the noble Lord, Lord Forsyth, said that the Scottish Parliament sits for only one and a half days. When I was a Member of that Parliament, that was a frustrating misconception reinforced by some of the press, which I felt had an agenda against the Parliament. There were plenary sessions but, unlike in this place, the committees in the Scottish Parliament had precedence. They met on Tuesday mornings, Tuesday afternoons and Wednesday mornings because of their distinct role.
The feeling was that the convenors of committees were going to be equal to Ministers and that their parliamentary strength was going to be in balancing the Executive’s authority. There was to be a shadow civic Parliament, with a much stronger civic input into the way that the Parliament operated. It is disappointing—there is a mea culpa from my party, which was part of the Administration early on, but it has most certainly been accelerated since 2007—that the Scottish Parliament has become remarkably like the Westminster Parliament. It has an absolutely dominant Executive and the committees have gradually become weaker. Their convenors are not even elected by the whole Parliament—an innovation of the House of Commons. The procedures of the Parliament have become weak in relation to power over the Executive when it comes to money. If there is anything that the Scottish Parliament can learn from our experience now, it is that Parliaments that reduce the ability to hold government to account for the money that it spends on behalf of the people are weakened Parliaments.
Ultimately, that has meant that there have been some examples where there has been less scrutiny than I, as a former Member of the Parliament, would have liked—whether that is on police reform, where mine was the only party to vote against what has happened because there was a large majority and the Executive were able to take it through; criminal justice reform; two areas that are currently being challenged by Brussels, on the Scottish Futures Trust and the delivery of infrastructure; minimum unit pricing, which has been challenged; or the quality. Fundamentally, these are my observations as a former Member who loves that institution, wishes it well and was a very proud Member of it.
However, I agree with the noble Lord, Lord Forsyth: it is not for this place to tell that institution what to do. If this place is to have a role—I know that members of the major party in Scotland will never accept that, and I understand the reasons for it—it is sometimes for former Members of the institutions with deep respect say to that institution that it is worth it considering its own procedures. I live in the area that I used to represent as a Member of the Scottish Parliament, and so I maintain a vested interest in that Parliament working well.
There is a case for some form of much heightened, strengthened pre-legislative scrutiny. Sir David Edward, whose qualifications I do not need to rehearse, argued in a very good lecture for a council of state, using the existing organisations that we currently have set up in Scotland—for example, the ombudsman—to be a much stronger check on the proposals being put forward. Corroboration is one area where there should have been stronger pre-legislative scrutiny.
Equally, I believe that there will increasingly be an argument for some form of check before the final stages of Scottish Parliament legislation. If there is a reformed House of Lords, it could be that we have a mandate from the Scottish people directly, or indirectly through the Scottish Parliament for senators in this place, and may well have some joint capacity with both the UK and Scottish Parliaments—I will not need to address the next amendment, which deals with the working relationships, because this is my point. Noble Lords may not be entirely surprised to hear me say that, ultimately, that should be one area that we consider in a constitutional convention: to look at the proper functioning and continued strengthening of how the Scottish Parliament operates and the areas where this institution should rightly have a relationship with it. Ultimately, we should seek a better, stronger Scottish Parliament, able to do its job.
Therefore, I am not persuaded by the solution that the noble Lord has brought forward, but I hope, with the deepest of respect to the institution that I love, that it takes it very seriously, especially in the context of the successful passage of this Bill, in which the Scottish Government’s powers over budget and taxation will be greatly enhanced.
Lord Hope of Craighead (CB)
My Lords, I do not want to take up any more time on this issue. However, I remind the noble Lord, Lord Dunlop, that when I followed the noble Earl, Lord Kinnoull, at Second Reading I asked him a question. The question was whether, having regard to what we see in the Bill, he felt that the Scottish Parliament was able to cope with the additional powers that we are passing to it. Of course it is a matter for that Parliament to work its own procedures; I absolutely understand that. However, we do have an interest, since we are devolving these additional powers. It would be very unfortunate if the Parliament as presently constructed, and designed for a totally different situation, was so overloaded that it could not fulfil its function.
Lord Norton of Louth (Con)
My Lords, for similar reasons, I will keep my comments brief, not least since I see that the target is to reach Amendment 42 this evening.
There is general agreement that the noble Lord, Lord Foulkes, has done us a service, because he has identified a problem. The question is how we address that problem, and there are two facets to it. One is how to ensure that there is a review of the present Chamber, but the problem has also been identified as to how, as responsibilities grow, it is going to cope with the demands made on it.
Lord McAvoy (Lab)
My Lords, I thank my noble friend Lord Foulkes of Cumnock for bringing this forward. I cannot help but make the point that it is a pity that we are dealing with this at this time of night and that noble Lords are curtailing their contributions in this most significant period of the evening. Quite frankly, we have been treated to two or three hours of negativity and continual attacks on the Bill and the Ministers bringing forward the Bill, and it is refreshing to have an extremely positive contribution from my noble friend to address a problem—and there is a problem.
Saying that there is a one-party state is overstating it, but we miss the experience of having Scottish nationalist party Members in this House contributing to this debate. It is mirrored in some ways in the Scottish Parliament where the committee system was supposed to balance things. However, I understand that one party controls the committee chairs and members of committees. They are not operating as a check and balance on the Executive. That is to be regretted.
My noble friend Lord Foulkes has no great expectation —although you never know—of this amendment being incorporated into the Bill, but he has sparked a debate about a real issue that we need to address, which the people of Scotland, the Scottish nationalist party and the other Scottish political parties have to look at as well. I take the point from the noble Lord, Lord Forsyth, that this is probably not the Bill to do that in, but by moving the amendment my noble friend has raised the issue, highlighted it and received some very thoughtful contributions from noble Lords. They had elements of negativity, but they nevertheless addressed the problem. I will not mention anyone in particular who has been negative all night, but he knows who is.
My noble friend has done us all a service by bringing this forward. The details are in the amendment and noble Lords will understand the amount of work that has been put in by my noble friend in assembling it. It is a first-class amendment and we are not opposed to it. We congratulate our noble friend on bringing it forward and hope that it sparks a debate not just in this Chamber but with our Scottish National Party colleagues in Scotland so that they can turn their mind to this. That would be the real bonus to come from my noble friend’s contribution. If we can spark a debate in Scotland so that the situation is looked at, my noble friend will have done a commendable service. I therefore appeal to our colleagues in Scotland to give this proposal particular attention.
We can be proud of the example we set. Most of us here, although not all, are determined not to destroy the place by what could be called irresponsible behaviour. Most of us are committed to the positive side of this House and the revising job that it does. I would like to see something like that in Scotland and I hope that we can take our Scottish National Party colleagues along with us. I think that the people of Scotland would be better served by that. I close by again thanking my noble friend for his extremely thoughtful contribution.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
As the noble Lord, Lord Foulkes, might appreciate, I am increasingly conscious that the robust scrutiny of this Chamber could be seen as an elegant example of how a second Chamber can operate. Be that as it may, the proposal he has put forward by way of his amendment is not a reflection of what was contained in the Smith commission agreement. The establishment of a second Chamber did not feature. However, as noble Lords will be aware, the noble Lord, Lord Smith, in his personal recommendations observed that the transfer of these substantial new powers would mean that the Scottish Parliament’s oversight of the Scottish Government would need to be strengthened. I recognise the noble Lord’s desire to see that the exercise of these substantial new powers should be properly and effectively scrutinised.
This Government fully endorse the recommendation made by the noble Lord, Lord Smith, that the Scottish Parliament’s oversight of the Scottish Government needs to be strengthened, but as the noble Lord set out, it is in the first instance the responsibility of the Presiding Officer and the Scottish Parliament to take forward this important work. I thank the noble Lord, Lord Foulkes, for his contribution to this debate and for putting before us what was noted by the noble Lord, Lord McAvoy, to be a real issue. Nevertheless, I say on behalf of the Government that this is not the place for such an amendment. This is not a place to bring in such a proposal when it was not addressed in the Smith commission agreement, and I therefore invite the noble Lord to withdraw his amendment.
Lord Foulkes of Cumnock
My Lords, I start with an apology to the noble and learned Lord, Lord Keen, for my irritation earlier. As my noble friend Lord Kirkhill pointed out to me, the Minister has not been a Member of this House for very long and we should be more tolerant, which is something that perhaps some on his own side ought to reflect on as well. I hope he will accept my sincere apologies.
However, I think he is wrong: just because this proposal was not in Smith, that does not mean it cannot be in the Bill. The Bill states:
“To amend the Scotland Act 1998 and make provision about the functions of the Scottish Ministers; and for connected purposes”.
It does not say that it is simply to implement the Smith commission work. So my amendment is entirely in order. Indeed, the Public Bill Office would not have allowed me to get away with tabling it if it was not.
Perhaps I may say how much I welcome the fairly widespread support for the amendment. As the noble Lord, Lord Norton, said, I think everyone recognises that there is a problem. I thought the noble and learned Lord, Lord McCluskey, had a better description of it when he quoted Lord Hailsham talking about an elected dictatorship rather than the effective one-party state that I have described. There are different ways of dealing with it and I have put forward one suggestion. It has been suggested by some in certain quarters, astonishingly, that this is not our responsibility. Notwithstanding that, the same people are trying to impose all sorts of things on the Scottish Parliament. The noble Lord, Lord Norton, is right to say that the Presiding Officer, along with her colleagues, has the principal responsibility for this, but there is nothing to stop us, as we saw earlier, making recommendations and indeed legislating.
The only two people who have been Members of the Scottish Parliament who have spoken are the noble Lord, Lord Purvis, and me, and we both have respect. I do not think the noble Lord, Lord Stephen, spoke in this debate although he did in previous ones and, of course—he keeps changing his name so I can never remember James’s latest title—
Lord Foulkes of Cumnock
Thank you. The noble Lord, Lord Selkirk of Douglas, was also a Member of the Scottish Parliament.
I have the same respect as the noble Lord, Lord Purvis, and I understand why he may not be as convinced as I am of the need for change. I served on the audit committee and we did some good work with Hugh Henry in the chair, but that was a time when the SNP did not have an overall majority. I do not know whether the noble Lord fully realises and appreciates the change that has taken place since the SNP has had a total overall majority. We know of PMQs, but even worse are FMQs when the First Minister has the last word. Look at the size of the Executive. What Willie Ross and three junior Ministers used to do is now being done by 13 Cabinet Ministers, each paid over £100,000, and 11 other Ministers. It is really quite astonishing the way in which that has grown.
I accept from the noble Lord, Lord Purvis—I do not accept it from others—that this matter would be best dealt with in an overall way through a constitutional convention. The noble Lord and I have been active in that. It is difficult on this occasion, but to be fair to the noble Lord, Lord Forsyth, he also supports the idea of a constitutional convention. However, he has so far been unable to persuade his Government that that is the right thing to do. To some extent it would be useful if he spent some energy trying to persuade his Government to accept the wisdom of that.
I really welcome the support from the noble Earl, Lord Kinnoull. His point about constituency Members being very busy dealing with case loads is a really important one, which added to the case that I made. I am also grateful for the support of the noble Lord, Lord Lyell, who, like me, is a football fan. He knows that it is astonishing that some people can be put in prison for up to five years for one of these offences. That is now being criticised by some on that side in the Scottish National Party, but nothing seems to be able to be done about it. I am grateful for the qualified support of my noble friend Lord Maxton. As the noble Lord, Lord Norton, said, there is a danger that an elected House will want to accrue power. That is something that we must take account of as well.
So, there is a problem; I think everyone recognises that. It is not something to which there is an easy solution. That is why any solution that is brought forward by anyone will be open to criticism of one kind or another. However, it is about time we talked about these things. It is even more important that the issues are addressed in Scotland by Scottish civil society, as well as by the Scottish Parliament. After all, the Scottish Parliament itself says that it is the people of Scotland who ultimately have sovereignty. I am one of those people; I speak not just as a Member of this House. I have been getting quite a lot of support on Twitter for this proposal—I do not often get support on Twitter as some noble Lords will know—and quite a lot of support from other quarters, so it is about time that we started looking at the issue in a sensible, coherent and systematic way. If I have contributed just a little to that, I will feel it was worth while to move the amendment. Nevertheless, I withdraw it.
The Earl of Dundee
“Cooperation between the Scottish and United Kingdom institutionsCooperation between the Scottish and United Kingdom institutions: reporting
(1) Within a year of the passing of this Act, the Secretary of State must review the impact of the provisions in this Act on cooperation between the Scottish institutions and United Kingdom institutions and prepare a report.
(2) In the review under subsection (1), the Secretary of State must consult such persons as the Secretary of State considers appropriate, and must consider the impact of the provisions in this Act on—
(a) the level of transparency and sharing of information between the United Kingdom institutions and the Scottish institutions; (b) the level of cooperation between the United Kingdom institutions and the Scottish institutions;(c) the sharing of examples of best practice between the United Kingdom institutions and the Scottish institutions; and(d) the appropriateness of devolution arrangements in Scotland.(3) The Secretary of State must lay a copy of the report prepared under subsection (1) before Parliament.
(4) In this section, “Scottish institutions” means—
(a) the Scottish Government,(b) the Scottish Parliament, and (c) Scottish authorities to which power is transferred under this Act.(5) In this section “United Kingdom institutions” means—
(a) the Parliament of the United Kingdom;(b) the Government of the United Kingdom; and(c) United Kingdom authorities from which power is transferred under this Act.”
The Earl of Dundee (Con)
My Lords, this amendment, if adopted, would enable the Secretary of State to prepare a report within a year of enacting the Bill. The subject would cover four aspects: the level of co-operation between Scottish and United Kingdom institutions; transparency and information sharing between them; the sharing of examples of best practice between them; and, as supported by their joint endeavours, an assessment of how successful and appropriate the journey of devolution itself may have become.
Such a report by the Secretary of State could well begin with this fourth aspect. For, to be effective at all, the journey of devolution must go beyond the administrative centre in Edinburgh. Otherwise, Scotland’s different regions and localities would not sufficiently benefit. Equally important, therefore, are the resolve and actions of the Scottish and United Kingdom Governments together to ensure that they do.
The Earl of Kinnoull
My Lords, I am attracted by the thinking behind this amendment. I remind your Lordships of a few lines from the Smith commission report, headed, “Inter-governmental working”:
“Throughout the course of the Commission, the issue of weak inter-governmental working was repeatedly raised as a problem”.
It went on:
“Both Governments need to work together to create a more productive, robust, visible and transparent relationship”.
Then, later on:
“I would encourage them to find solutions”.
This amendment, and the thinking behind it, drives at that area and, therefore, has my total support.
Following on from the point made by the noble and learned Lord, Lord Hope, and the noble Lord, Lord McAvoy, it is a pity that the SNP are not here to talk to this issue. Thanks purely to their party political policy, they, as the self-styled voice of Scotland, are not here voicing their opinions or advancing amendments. Indeed, we would have none of its amendments were it not for the work of the noble and learned Lord, Lord Hope. I regret this self-inflicted state of affairs.
Anything which promotes co-operation, co-ordination and communication is part of the business of good government. I thought it would be helpful for your Lordships to have one real example of the problems associated with devolution. I am the chairman of the Red Squirrel Survival Trust, a UK-wide charity which is doing pretty well what it says on the tin. Red squirrels run backwards and forwards across the border between England and Scotland with no barrier. In the autumn of 2013, I had a meeting with two senior officials from Scottish National Heritage; men of great calibre and enthusiasm. During the meeting, it came out that they did not know their opposite numbers in England or their telephone numbers. A red squirrel is a UK-wide mammal which is severely endangered, but communication totally broke down at the point of devolution. Being the men they were, they instantly began working at a solution and something called the United Kingdom Squirrel Accord, which covers problems for both red and grey squirrels and for broadleaved trees, grew up. I am, in fact, the chairman of that as well and I salute its work. That is an excellent example of where, if communication, co-ordination and co-operation break down, you get bad government, not good.
Lord Foulkes of Cumnock
I will just intervene, rather than make a speech. I agree absolutely with the noble Earl and with the amendment. I do not know whether the noble Earl has heard but at Question Time I regularly ask UK Ministers, again and again, what discussions they have had with their Scottish counterparts. Invariably, it is none. They ought to meet with them more often. The trouble with Westminster, and Whitehall in particular, is that they do not pay enough attention to the devolved Administrations where there are the kind of issues, such as the red squirrels, which the noble Earl mentioned.
The Earl of Kinnoull
I am grateful to the noble Lord: I had heard that. It is an endemic issue. With the squirrel accord, various governmental bodies from the Welsh, Northern Ireland, English and Scottish Governments now actually sit together once a quarter. If they cannot do so, they are on the telephone. They know each other and have to meet face to face once a year. I feel a bit like a schoolmaster there, but it is extremely effective in this one tiny area. The amendment, and the thinking behind it, could be very effective because the nature of this report will be to find out where there are weaknesses. We have very high-quality officials north and south of the border and, once a problem is identified, they have the ability to sort it out. Therefore, the thinking behind the amendment deserves consideration, if not, perhaps, its precise wording. It is very much within the scope of the Bill, given the quote that I read out. I commend it to the Committee.
The Earl of Lindsay (Con)
My Lords, I, too, strongly support this amendment. If I have a quarrel with it, it is that I do not think it goes far enough. If I have read the amendment correctly, it focuses simply on the provisions of the Bill when it becomes an Act. The focus on the quality and quantity of co-operation that does or does not exist should go beyond just what this Bill is seeking to achieve; its scope should include all the provisions and measures that have led to the devolved constitution we now have.
For a similar reason I wonder why this amendment seeks just a single report on the level of co-operation that is being achieved. That co-operation is such an important continuing ingredient of a successful devolved constitution that it should not simply be subject to a single one-off review and report.
The perspective that I bring to this precedes the wisdom that the Smith commission added in this area and goes back to the Calman commission, of which I was a member. Noble Lords may remember that the longest chapter in the Calman commission report turned out to be chapter four. We came up with 25 recommendations under just that chapter, which concerned strengthening co-operation. The evidence that we took on the need for co-operation was compelling. The evidence from other countries with stable and successful devolved constitutions was especially compelling. It was quite clear from that evidence that the ability of different Governments and Parliaments to co-operate and work together in a constructive and structured manner is an absolutely fundamental ingredient of a resilient, flexible and successful devolved constitution. There was nothing ambiguous about the evidence that we took.
We also took evidence on the extent to which people in Scotland and interests in Scotland expected there to be constructive co-operation between the Governments and Parliaments of the United Kingdom and Scotland. They expected it to be a norm, not an exception. However, the depressing conclusion that we came to when we reported was that, apart from a few bright spots, good, constructive co-operation between the United Kingdom and Scotland was an exception, not a norm. Therefore, I very much support the direction of travel of this amendment. However, as I said, I would go very much further and widen its scope to include all the measures that comprise the devolved constitution, and I would make it a continuing or regular discipline rather than a one-off one.
Lord Lang of Monkton (Con)
My Lords, I congratulate my noble friend Lord Dundee on the very attractive sentiments that he expressed in moving his amendment. I also congratulate my noble friends Lord Kinnoull and Lord Lindsay on their contributions, both of which were extremely attractive. That shows how well the elected Members of this House are performing their duties.
I would like to broaden the subject slightly—as, indeed, did the noble Lord, Lord Foulkes, and one or two others—to intergovernmental relations, as it is a very important area. The noble Lord, Lord Smith, was absolutely right to draw attention to it in one of his four points in his preface to the Smith commission report. During the Second Reading debate, I and others made reference to it.
Your Lordships might like to know that the Constitution Committee undertook a report on this subject in 2002. As it happened, my noble friend Lord Norton of Louth and I were both on the committee at that time. We then left the committee and, having rejoined it, we discovered that nothing at all had been done during the intervening 13 years. We have undertaken another report, which we published earlier this year and submitted to the Government.
We have not had a response to that report, and I make no complaint about that because I know that the Government are thinking very deeply about this subject and a lot of back-room work is going on. I hope very much that once the joint ministerial understanding work has been completed, they will feel able to produce the outcome of their deliberations and include with that a response to our report. This is a subject that your Lordships’ House will want to return to, I am quite certain.
I have only one qualification about my noble friend’s amendment, which is that this is probably not the right time or place to move it. On the other hand, if he thinks it will stand freely on its own, entirely separate from the broader subject of intergovernmental relations, he may wish to press it, and that is a matter for him.
Lord Sanderson of Bowden (Con)
My Lords, I, too, support the noble Earl’s amendment but I agree that it does not go nearly far enough. At Second Reading, as the Minister knows, I took a particular interest in scrutiny. When we come to the financial part of the Bill, scrutiny is going to be even more important.
The Office for Budget Responsibility has done a tremendous job in the United Kingdom since our Government brought it into being. That cannot be allowed to fail when we get to the terms of what goes on in Scotland. What we must see in Scotland is a similar fiscal commissioner, or whatever you like to call it, but if it does not work closely with the Office for Budget Responsibility it is not going to carry much weight at all.
Those of us who are very concerned about the financial provisions of this settlement will be really very interested to see how the Government are going to get agreement with the Scottish Government on this vital issue. While I support very much the terms of what the noble Earl is proposing, it does not go nearly far enough.
Lord McAvoy
My Lords, I, too, thank the noble Earl and congratulate him on his amendment. I will be relatively brief as well. We support much of what is suggested, other than proposed new paragraph (2)(d), as we do not believe that the “appropriateness” of devolution needs to be reviewed. We will be proposing similar arrangements with regard to the transfer of the welfare provisions, so the amendment is extremely useful.
I think the noble Earl would accept that such arrangements are founded on mutual respect and co-operation between the two Governments. We all have to be careful with the sensitivity of language but we cannot have it portrayed—I know the noble Earl has not done this—as Westminster talking down to Holyrood. But conducted in an atmosphere of co-operation, friendship and mutual respect, I think there can be a great service done to the Scottish people and the rest of the United Kingdom.
Lord Keen of Elie
My Lords, I am obliged to the noble Earl for putting forward this amendment. As your Lordships are aware, the matter of intergovernmental working was addressed by the noble Lord, Lord Smith, in his introduction to the Smith commission agreement, in which he emphasised its importance in achieving the aims of devolution.
A considerable degree of very positive co-operation between the Scottish and United Kingdom institutions takes place on a daily basis, from routine dialogue on matters such as planning for civil contingencies to supporting business and exports. It would be difficult to report on each and every one of these interactions. Nevertheless, it is important to recognise that they should be as transparent as possible.
Specific steps have been taken recently in encouraging more regular collaboration between the United Kingdom and Scottish Governments in areas of joint interest. One example of such work is the cross-Administration “Devolution and You” Civil Service capability campaign, which the Cabinet Secretary launched in June 2015. In addition, there is now the Joint Ministerial Working Group on Welfare, which was established to provide a forum for discussion and decision-making on implementation of the welfare-related aspects of the Smith commission agreement.
I also welcome the work of the Constitution Committee on behalf of this Chamber and note its recommendations regarding increased cross-parliamentary scrutiny of intergovernmental relations. This was also recommended by the Scottish Parliament’s Devolution (Further Powers) Committee. It will be important to see how Parliament responds to these recommendations. Furthermore, my noble friend Lord Dunlop set out during Second Reading details of how we are working with the three devolved Administrations to review intergovernmental arrangements and ensure effective working relationships with those Administrations.
There is a concern that a statutory duty to report on these interactions could prove burdensome and might prove unnecessary. However, we—the Government —are happy to take away and consider what the noble Earl has suggested, and explore how we may incorporate these suggestions into the work which is going on with regard to intergovernmental relations. I would be happy to discuss this with him. However, having regard to the present terms of the Bill and the comments that have been made, I invite my noble friend to withdraw this amendment.
The Earl of Dundee
My Lords, I thank all of your Lordships for your kind support for this amendment, starting with the noble Earl, Lord Kinnoull, and the noble Lords, Lord Foulkes and Lord McAvoy. The noble Lord, Lord McAvoy, emphasised and drew to our attention the vital importance of the two Parliaments and Governments being on equal terms. That must be key to success.
The noble Earl, Lord Kinnoull, gave us an example from his own experience, which started off in an intransigent way with people not talking to each other. As he said, that can be converted to something constructive when people do otherwise.
I take the point made by my noble friends Lord Lang, Lord Sanderson and Lord Lindsay, who commented that the amendment might go further than it does. My noble friend also suggested that it should apply to all parts of the Bill and instanced, from his past committee work, evidence from other institutions and Parliaments in other parts of the world which proves beyond doubt that successful government comes from proper co-operation between the parties concerned.
I am extremely grateful to my noble and learned friend for what he has just said—namely, that he will take this amendment away. Meanwhile, I now beg leave to withdraw the amendment.
Lord Keen of Elie
Lord Keen of Elie
My Lords, Clauses 3 to 10 devolve full powers to the Scottish Parliament in respect of the registration, franchise, administration and conduct of Scottish parliamentary elections, with the exception of certain specified subject matters which are reflected in the Smith commission agreement.
Government Amendment 24 removes what is now a redundant provision in respect of the Scottish Ministers’ order-making powers under new Section 12 of the Scotland Act 1998, which is to be inserted by Clause 4. Following amendment on Report in the Commons, new Section 12(1) allows the Scottish Ministers to make provision under that section if it,
“would be within the legislative competence of”,
the Scottish Parliament,
“if included in an Act of the Scottish Parliament”.
Since the digital service is reserved under new Section B3(B) of Schedule 5 to the Scotland Act 1998, as inserted by Clause 3, the order-making power of the Scottish Ministers under the new Section 12 cannot extend to making provision about the digital service. In Clause 6, additional powers are transferred to Scottish Ministers to make provision about the digital service in relation to Scottish parliamentary elections and to local government elections in Scotland, with the agreement of UK Ministers. Amendment 24 is essentially a technical amendment which arises out of the amendment on Report in the Commons to new Section 12(1).
Lord Forsyth of Drumlean
“Interval between elections
The Scottish Parliament may not make provision to extend the interval between ordinary general elections as specified in section 2 of the Scotland Act 1998 (ordinary general elections).”
Lord Forsyth of Drumlean
My Lords, I am conscious of the late hour but I would like to move Amendment 26. As we have already discussed during the course of the evening, there is no second Chamber in the Scottish Parliament. This House has an important constitutional role in preventing the House of Commons from extending its own life. Although the circumstances in which that might happen are hard to consider, it is an important check and balance.
This amendment seeks to make it quite clear that the Scottish Parliament cannot extend the interval between ordinary general elections and therefore prolong its own life under any circumstances. It would have been possible of course to make that subject to the agreement of the Westminster Parliament—the British Parliament—but I think that an absolute prohibition on extending the life is the most appropriate way to proceed. I beg to move.
Lord Keen of Elie
My Lords, I note the reasoning behind the amendment proposed by the noble Lord, Lord Forsyth. At present, Section 2 of the Scotland Act 1998 provides that general elections are to be held every four years. That power is to be devolved to the Scottish Parliament, but it will not be without limitation. The Scottish Parliament cannot pass legislation that is not compliant with the European Convention on Human Rights. Pursuant to Article 3 of the First Protocol to the Convention, there is a requirement for free and fair elections at reasonable intervals. The Smith commission agreement proposes that it should be for the Scottish Parliament to determine those reasonable intervals. We consider that that is appropriate and in accordance with the recommendations of the agreement, which the Bill seeks to implement. In these circumstances, I invite the noble Lord to withdraw his amendment.
Lord Forsyth of Drumlean
I have to say to my noble and learned friend that I do not think that that is a very satisfactory response. There was talk earlier in the evening about a one-party state and the dominance of the Parliament by one party. The precedent is long established that it is not possible for the other place to extend the life of a Parliament. Were it to try to do so, this House has an important role, which would prevent that from happening except in the most exceptional circumstances. Perhaps I have misunderstood what my noble and learned friend said, but he appeared to say that it is a matter for the Scottish Parliament to decide what the timing is between elections, and that cannot be right.
I am not suggesting for a moment that the Scottish Parliament might decide to do this under its current regime and Administration but I rather anticipated in putting down this amendment that my noble and learned friend would tell me that there was some other protection. Frankly, for this Government of all Governments to say that we should rely on the European Convention on Human Rights is ironic—to put it mildly. I hope that my noble friend will at least undertake to give this further consideration before we return to later stages of the Bill.
Lord McAvoy
My Lords, on this occasion we cannot support the proposal in the amendment of the noble Lord, Lord Forsyth. Elections to the Scottish Parliament will not be able to be held on the same day as the UK general election or a European parliamentary election. Under the Scotland Act 1998, an election must take place on the first Thursday in May in the fourth calendar year. However, Scottish elections are fully devolved matters. When elections are held is a decision for the Scottish Government, other than the restrictions I highlighted. Unfortunately for the noble Lord—
Lord Forsyth of Drumlean
Is the noble Lord really saying that it could possibly be acceptable for a devolved legislature, perhaps dominated by one party, to have the power, having won an election, to decide that the next election would not be for seven years? That would be a completely unacceptable use of the powers of a devolved Administration. Why is he so opposed to having an amendment to the legislation to eliminate that possibility?
Lord McAvoy
My Lords, when you have devolution, you have devolution. The noble Lord poses a potential situation that is totally unrealistic. I do not think it would happen. Any behaviour like that from a devolved Assembly anywhere in the United Kingdom would be punished by that electorate. Devolution is devolution. I do not want to get contentious at this time of night but I think the noble Lord’s attitude is coloured by a continuing non-acceptance of the principle of devolution. You cannot devolve power and then try to dictate to that Parliament what to do—it is not feasible. I do not see it happening anywhere in the United Kingdom, through any devolved Assembly.
Lord Forsyth of Drumlean
The noble Lord will recall that we already extended the life of the Scottish Parliament from four to five years, I think on one or even two occasions.
Lord Keen of Elie
I first apologise to the noble Lord, Lord McAvoy. I had not appreciated that he intended to speak in the context of this proposed amendment and intervened too early. For that I apologise.
I will just add that the Smith commission agreement determined, on the basis of the consensus of five political parties, that elections to the Scottish Parliament should be devolved, and that the timing of those elections should be devolved to the Scottish Parliament. We must regard the Smith commission agreement as the product of a responsible negotiation by responsible political parties, and we must regard the Scottish Parliament as a responsible devolved body. We have no right to do otherwise, if I might respectfully say so. Given the existing backstop in terms of convention law pursuant to which, under Article 3 of Protocol 1, there is a requirement for free and fair elections at reasonable intervals, in my submission that appears an appropriate way forward.
On the matter of extending the life of the Parliament, as raised by my noble friend Lord Forsyth, an Order in Council under Section 30 in October 2015 allowed the Scottish Parliament to set the 2016 election at more than four years, extending it to five years. I am not aware of another occasion.
Lord Forsyth of Drumlean
On my noble and learned friend’s reference to the European convention, what constitutes a reasonable interval? Would five or six years constitute a reasonable interval?
Lord Keen of Elie
That would be a matter for the Scottish Parliament to determine, and is subject to review. If it gets that wrong, any legislation that it passes is not law, pursuant to Section 29 of the Scotland Act 1998.
Lord Keen of Elie
Lord McCluskey
Lord McCluskey (CB)
This is a technical matter, and it is not worth taking up time on it at this time of night. Accordingly, it is not moved.
Lord Hope of Craighead
Lord Hope of Craighead
This is one of a group of amendments running through to Amendment 40. Although Amendments 31 and 32 are not in my name, they duplicate ones that are.
This is another group of amendments that I have taken from the group proposed or suggested by the Scottish Ministers in June this year. The interesting feature of these amendments is that they were tabled on 15 June but were either not called or withdrawn. So they were never considered by the other House, and I thought it right to bring them back so that at least they could be considered in this place and not be lost sight of entirely. Their aim is simply to improve the working of Clause 11, which deals with the supermajority system in the event of certain measures coming before the Scottish Parliament. Reading between the lines, I think what has happened is that draftsmen in Edinburgh have worked through the clause, with their knowledge of how the Scottish Parliament works and in the light of provisions in the relevant parts of the Scotland Act 1998, and made suggestions as to how the clauses could be improved.
Because of the lateness of the hour, I do not want to go through the amendments in any detail. However, the first amendment alters the timing of the decision of the Presiding Officer from the decision that the Bill be passed to putting the Motion. There may be some merit in that alteration of timing. In Clause 11(5), two matters are inserted which are reproduced by Amendments 31 and 32, and which are sufficiently important to be included in the list of protected subject matters. I suggest that there is some merit in those. Clause 11(6) inserts passing without a Division as an event which should have the same status as the passing of a Bill by a two-thirds majority. It is conceivable that that could happen, and it is as well to provide for it. If passed without a Division, there would be a consensus that would meet the broad requirements for a supermajority, ensuring that the Presiding Officer would not have to go through the drill of making a statement in that situation as to whether the provision relates to a protected subject matter.
In Clause 11(10) two situations are inserted which, given what appears above, should not trigger a reference. Importantly, a provision is inserted that would enable the Parliament to take the matter back for further consideration, in which event consideration of the issue by the Supreme Court would not be necessary. That type of treatment is already to be found in Section 36 of the Scotland Act, which deals with stages of Bills. Section 36(4) provides that standing orders shall provide for an opportunity for the reconsideration of a Bill after its passing if the judicial committee decides that a provision would not be within legislative competence. The same mechanism is thought to be appropriate for the supermajority solution. All these amendments are very technical. I do not think there is any political angle to them. There is simply a desire to improve the working of the Bill and to make sure that this rather complicated provision, which I imagine will very rarely, if ever, be triggered, makes proper sense.
I shall make one brief final comment in relation to the position of the noble Lord, Lord Smith of Kelvin, in relation to this Bill. The noble and learned Lord said, if I understood him correctly, that he was of the view that the terms of the Bill meet the requirements of the Smith commission report. I happened to meet the noble Lord on Sunday, and he said that if that is the impression that Ministers have, he has been misunderstood. His attitude is the attitude of a lay man, and he says that, as far as he is concerned, he has not looked at the Bill from the point of view of a lawyer. If there are matters in which it could be improved, given study by lawyers and legislative draftsmen, he is all in favour of it because his aim is to have a Bill that is as good as possible. He authorised me to say that if Ministers doubt my word, they should speak to him directly. I do not think that the noble Lord, Lord Smith, if he were here, would object to these amendments, whatever he may say about the others.
Lord Stephen (LD)
I rise to speak to Amendments 31 and 34, which are in my name and that of my noble and learned friend Lord Wallace of Tankerness. This is back to the future, back to the debate we had just a few minutes ago about the extension of the length of the term of the Scottish Parliament. The issue is still grouped with these amendments, and our proposed approach is to include the extension of the term of the Parliament in the list of special majority or supermajority issues, except for what will be the second extension of the term of the Scottish Parliament, which the noble Lord, Lord Forsyth, mentioned earlier. That is happening right here, right now because the proposal is for the term which ran from 2011 to 2016, a five-year term, to be followed by another five-year term from 2016 to 2021.
The Bill in the Scottish Parliament to achieve that extension was introduced on 17 November. It is called the Scottish Elections (Dates) Bill. We believe that to make it clear and to avoid any uncertainty or confusion, that Bill should be excluded from the requirement to have a special majority. Otherwise, we agree with the noble Lord, Lord Forsyth, that this is an important issue. I think there could well be some sort of cap on the number of years for which you can extend. For example, extending by one year is perhaps the maximum that any of us would envisage, but if we have an extension of the term of the Parliament, it seems entirely appropriate that, alongside the other issues listed here, it should be by special majority of the Scottish Parliament.
Lord Forsyth of Drumlean
Before the noble Lord sits down, could he deal with the reasons why he is not content to rest on the European Convention on Human Rights?
Lord Stephen
I was as interested as the noble Lord, Lord Forsyth, to hear that that was the justification for his amendment being rejected. I would say that he has a case for his amendment, but there have been times when a limited and appropriate extension of the term of the Scottish Parliament has been useful. However, if that happens in future, I do not see why it should not be by a special majority to show that there is solid and widespread support for the proposal from all Members of the Scottish Parliament, or as many as make up a supermajority.
Lord Forsyth of Drumlean
Again, before he sits down, could the noble Lord confirm that it is not because he has always been opposed to devolution that he is taking this view?
Lord Stephen
At this late hour, I am happy to confirm almost anything to the noble Lord.
Lord McCluskey
My Lords, in view of the terms of Amendment 33, I shall not be moving Amendment 32.
Lord Davidson of Glen Clova
My Lords, this has been a brief and helpful debate about the question of the supermajority. We do not oppose the various amendments that have been tabled.
We agree that the amendments tabled by the noble and learned Lord, Lord Hope, are technical and doubtless useful in taking matters forward. It would be useful to know why he is in the position of having to advance notions that the Scottish Government would wish this Chamber to advance. We were hearing not so long ago about the good relations that were breaking out at intergovernmental level, which might suggest that these various amendments would have been brought forward by the Scottish Government to Her Majesty’s Government and that, as a result of intergovernmental discussion, one would have been able to achieve some consensus on these points. We look forward to seeing if the improvement in intergovernmental relations takes us that far.
The noble Lord, Lord Stephen, introduces two amendments in relation to parliamentary terms and the supermajority. We support those additions. On the question of the deployment of the European Convention on Human Rights, where the Scottish Government transgress in this regard there will be the protection of the Advocate-General for Scotland raising proceedings before the Supreme Court, but also the Lord Advocate—a Minister of the Scottish Government, as I have already alluded to—as well as the Attorney-General. We certainly do not oppose these amendments; we support them.
Lord Keen of Elie
I am obliged to noble Lords. Clearly I cannot comment on any dialogue that the noble and learned Lord, Lord Hope, has had recently with the noble Lord, Lord Smith. I merely observe that there is a distinction between improving the Bill in order to implement the Smith commission agreement and, on the other hand, extending the Bill so that it goes beyond the terms of the agreement, or in fact retreating so that the Bill does not implement it. We would of course be happy to pursue further dialogue ourselves with the noble Lord, Lord Smith, if he felt that that would be useful.
These amendments seem to fall into two broad categories: on the one hand, amendments to the current clauses that are intended to improve the drafting of the Bill, and, on the other, a second theme extending the scope of the supermajority clause to matters that were not included in the Smith commission agreement. I shall deal with these in turn. I turn first to those amendments put forward as a means of improving the operation of Clause 11 as and when it is implemented. Amendment 35 would allow for a Bill to be passed without a Division. Our considered position is that a Division is the most straightforward way of verifying that a two-thirds majority in the Scottish Parliament has been achieved. For this reason, we cannot agree with the proposal in Amendment 35, which provides for a Bill to be passed by consensus.
In addition, we do not agree with the proposal in Amendment 39 that the Scottish Parliament should be able to “reconsider” a Bill if the Presiding Officer decides that a supermajority is required and the Supreme Court later affirms this. Nor do we agree with Amendment 40, which appears to provide that the Scottish Parliament should be able to reconsider a Bill if the Presiding Officer decides that a supermajority is required and the Bill receives only a simple majority. We consider that in both these situations there should be careful consideration and no short-cut to a final vote which requires the supermajority in the context of such legislation.
While we agree with the rationale behind Amendments 30 and 38 and parts of Amendments 37 and 40, we believe that the Bill as drafted provides for these considerations and that therefore such amendment is unnecessary. We would of course be happy to discuss this further with the proposers of the amendments.
I will address those amendments which seek to extend the scope of the supermajority provision, particularly Amendments 31 and 33, and I think a part of Amendment 34. Amendments 31, 33 and 34 seek to ensure that legislation brought forward by the Scottish Parliament concerning the period of time between ordinary general elections to the Scottish Parliament should also be covered by the requirement for a two-thirds majority. The second part of Amendment 33 seeks to ensure that Bills concerning the alteration of boundaries of constituencies, regions or any equivalent electoral area for the Scottish Parliament should also be covered by the two-thirds majority. The simple response of the Government is that the Smith commission agreement specifically outlined the subject matter, which it considered should be subject to the supermajority requirement. It did not propose that legislation concerning the term length of the Scottish Parliament, the date of any Scottish Parliament elections or the alteration of boundaries should be subject to a two-thirds majority of the Scottish Parliament. In these circumstances, we would not be content with the proposed amendments. I therefore invite the noble and learned Lord to withdraw his amendment.
Lord Hope of Craighead
My Lords, I beg leave to withdraw the amendment in view of the points that have been made by the noble and learned Lord.
Lord Forsyth of Drumlean
Lord Forsyth of Drumlean
My Lords, the hour is late, but I will say just a few words in respect of this amendment, which, basically, ensures that changes to the franchise, the constituencies and the number of MSPs—which under the provisions of the Bill require a two-thirds majority—have also to be approved at Westminster. I am not a great believer in opinion polls; as we discovered at the general election, they can be quite wrong. However, it is not inconceivable that two-thirds of the Scottish Parliament at the forthcoming elections could be composed of people who believe that Scotland would be better off independent. If that were to happen, and this Parliament, which is the United Kingdom Parliament, had created circumstances in which it was possible for fundamental changes to be made to the franchise, the constituencies and the number of MSPs, that would be a matter of very considerable concern. Personally, I do not like the idea of two-thirds supermajorities; it is an unfortunate intrusion into our constitutional affairs. It has knock-on implications for other devolved institutions and for Westminster, but of course the Smith commission has recommended it, so it would appear that we have to go along with it. The amendment would provide a belt-and-braces safeguard to ensure that key issues such as the franchise, the constituencies and the number of MSPs were approved at Westminster, having also had a two-thirds majority in the Scottish Parliament. I beg to move.
Lord Keen of Elie
My Lords, Clause 11 requires certain types of electoral legislation to be passed by a two-thirds majority, or supermajority, of the Scottish Parliament. Paragraph 27 of the Smith commission agreement states in terms that this is:
“To provide an adequate check on Scottish Parliament legislation”,
in these areas. An “adequate check” was the consensus of the five political parties which took part in the Smith commission and which arrived at the Smith Commission agreement.
The Government consider that the supermajority requirement provides an appropriate check on this type of Scottish Parliament legislation. Indeed, to approve this amendment would be to give with one hand and then take away with the other so far as the Scottish Parliament is concerned. It would not be in accordance with the spirit of the Smith commission agreement, let alone with the terms of paragraph 27. In these circumstances, I urge my noble friend to withdraw his amendment.
Lord Forsyth of Drumlean
My noble and learned friend’s only argument has been, once again, to rest on the Smith commission. He keeps saying that it had the support of all five political parties. I am not aware of the members of the Conservative Party being consulted at all on the Smith commission proposals; nor am I aware of any discussion on those matters in the other place or in this place. What happened was that people nominated by the political parties got together and produced a report. It really is quite misleading to keep saying that this was endorsed by all the political parties. That may have been true of the Liberal Democrats or other parties but it certainly was not true of the Conservative Party. Furthermore, this was all done at an enormous pace—it was all agreed in eight weeks. As we have heard from the noble and learned Lord, Lord Hope, the noble Lord, Lord Smith, himself has not sought to argue that he has endorsed this Bill in terms of the provisions of the Smith commission.
Lord Hope of Craighead
The noble Lord said that he is not to be taken as approving the precise terms of the Bill as a lawyer. He is not a lawyer. He emphasised that he is a layman, and he speaks as a layman when he endorses what is in the Bill. If it were possible to find ways in which the Bill could be improved in relation to constitutional principles or whatever else, he would be in favour of that because that is not his field and he is aware that there could be room for improvement in those areas. What he emphasised was, “Don’t confuse me with a lawyer. I am a layman and I give it support as a layman”. However, if there were respectable arguments from lawyers, he would give way to them and improve the Bill if that was a way of making better progress.
Lord Forsyth of Drumlean
I am most grateful to the noble and learned Lord for making that clarification. It is important that effective checks are in place. This whole process has been carried out swiftly and without much in the way of discussion either among the membership of the political parties or indeed within the House of Commons. Although four days were allocated to Committee, many of these issues were not considered because of the process by which amendments are dealt with. However, I can sense that folk do not wish me to detain the Committee on this matter and there will be further opportunities to come back to it, so I beg leave to withdraw the amendment.
Lord Hope of Craighead
“( ) In paragraph 1(2)(f) of Schedule 4 (protection of Scotland Act 1998 from modification), after “Human Rights Act 1998” insert “except the Convention rights set out in Schedule 1 to that Act”.”
Lord Hope of Craighead
My Lords, I do not propose to develop this amendment. Without going into the reasons for it, it arose in relation to the Sewel convention. I would have developed the point more fully if there had been time to explain why, but, in view of the lateness of the hour and the fact that we have already discussed the particular aspects of the Sewel convention that we sought to explain more fully, I think the best thing for me to do is not to move the amendment.