Scotland Bill

Duke of Montrose Excerpts

Tuesday 6th September 2011 Lords Chamber

[The Duke of Montrose]

My Lords, I pick up the danger referred to by the noble Lord, Lord McAvoy, of the way that the pushing back of our debate to so late in the day will play out outside this building. It has been very interesting to see how each noble Lord has given his perspective on the history of the devolution Act and on the relationship between Scotland and England. Short of the struggles that have occurred over Ireland, the relationship between Scotland and England has been one of the most well known and contentious areas of our national life. Throughout our history, each side has won some and lost some. Certainly, in the first 500 years before the Act of Union, my family was quite heavily involved in every scrap that came up and at least six members died either in battle or by execution at the hands of rival factions—and that is without going into family squabbles, mentioned by the noble Lord, Lord Selkirk. To be a leader in Scotland was not always found to be a very cushy ride.

It is a well recognised fact that there can be nothing bloodier than a civil war. We do not need to look beyond the current situation in Libya to see this being fulfilled as we speak. As with Fletcher of Saltoun, mentioned by the noble Lord, Lord Steel of Aikwood, this might have weighed on the mind of my ancestor, the 4th Marquis of Montrose, when, as President of the Council in the Scottish Parliament, he sent the commissioners to negotiate the Act of Union. As the noble Lord, Lord McAvoy, said, the Scots at that point were regarded in England as potential troublemakers. However, considering the state of the Scottish economy at that time, it has always seemed to me remarkable what sort of a settlement they were able to achieve. The Scottish historian Tom Devine points out in his recent book:

“Far from being a junior partner of England, Scotland played its distinct and … often larger part in building British influence and prosperity. In finance, engineering, commerce, medicine, education, the military, etc, it was at the heart of British global expansion, in good causes of human development, and in bad ones like the West Indies slave plantations”.

Even today, the areas of co-operation and distinctness that the Scots laid down have proved a useful foundation for the modern approach to devolution.

This issue of devolution, and even home rule, has been raised in the forum of politics periodically during the past 100 years. On occasions in years following the Irish Home Rule Act when the topic came up in relation to Scotland, my grandfather's name was frequently associated with it. In 1932, a letter which he had sent to the Times, in which he expressed the view that nobody denied the great benefits which Scotland had obtained from the Act of Union, was quoted in the other place in the debate on the Address at col. 243 on 24 November. As far back as 1926, slightly presupposing the line taken by the noble Lord, Lord Steel of Aikwood, he wrote in the Glasgow Herald:

“I cannot believe that for all time coming Scottish affairs will continue to be settled by Englishmen sitting in London”.

His campaign was for devolution to a Scottish Parliament, but not for separation or independence. I am sure that he would have regarded it as a great step forward that we are now marking the first 10 years of the Scottish Parliament.

Major issues in the Bill have been dealt with by many other noble Lords. Perhaps I may raise a small but fundamental one: we are now the third legislative Chamber to have been given the opportunity to scrutinise it. It was obviously a major task of the Calman commission to look at mechanisms for strengthening relations between the Parliaments, and it is interesting to see the Government’s response as contained in their Command Paper. However, there is one question about its progress which I should like to put to the Minister—it was raised also by the noble Lord, Lord Sewel. What is the place of the Sewel convention in all this? How are these conventions established and who gets to interpret what they contain?

During the past 10 years, I have been a keen watcher of the use of this convention and the very essential channel that it has provided between the two legislatures. There are proposals in the Command Paper to have it strengthened. My question is quite well illustrated by the Explanatory Notes. Line 6 of paragraph 8 states:

“The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament”.

I have always taken it to refer to matters that are devolved. However, the paragraph begins with the words:

“At introduction, this Bill contains provisions that trigger the Sewel Convention”.

Maybe some of it does, but by way of illustrating its argument, it advances Clauses 11 and 24, which relate respectively to the Firearms Act 1968 and the Road Traffic Act 1988. In the Scotland Act 1998 and up until now both of these were reserved matters under Schedule 5.

In my recollection, the use of the Sewel convention was to obtain the consent of the Scottish Parliament when modifications were needed to devolved legislation. A recent exercise which comes to mind was the Marine and Coastal Access Act 2009 where Scottish inshore waters were already devolved and the application of the Food and Environment Protection Act 1985 under Scottish jurisdiction was already devolved but the Bill had to encompass all these and therefore the Sewel convention was very appropriate.

This Bill has been subject to consideration by the Scottish Parliament and in its final form it appears it will be subject to its consideration again. It is not my purpose to question whether it was a good idea to see what the Scottish Parliament thought of it. However, to consider the holding of that consultation to be part of the Sewel convention seems to me to constitute rather a new precedent that should not be entered into just by default. If what we are considering is a necessary political adjustment and perhaps the handing over of entirely new powers, perhaps it should be subject to a rather different form of negotiation. Perhaps it is something new that we require, even a Wallace convention. The handing over of entirely new matters that were not previously devolved is a more serious matter than simply making adjustments.

I see that the establishment, and we touched on this earlier, of who will be regarded as a Scottish taxpayer is now said to be already laid down in relation to the previous tax-raising powers of the Scottish Parliament. At least it is reassuring to know that HMRC are looking at it again in the light of the situation in which we find ourselves. Will the Minister bring these findings to the House before we complete Committee stage? They will be very relevant to how we regard the approach on this matter.

The question of how the Treasury will be able to tell the actual size of what is termed “the equivalent sum”—to be removed from the block grant to match the removal of 10p off all levels of income tax from individuals designated as Scots—throws up an enormous list of allowance and adjustments. My noble friend Lord Selkirk of Douglas in a debate on the Barnett formula used the comparison of Lord Palmerston’s explanation of Europe’s understanding of the Schleswig-Holstein issue. We are now winding the whole financial settlement up several more levels and I can only wish the Minister well in his attempts.