Scotland Bill

Duke of Montrose Excerpts

Thursday 26th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, in responding to the amendment moved by the noble Lord, Lord Foulkes, I am very tempted to adopt the argument of the noble and learned Lord, Lord Boyd of Duncansby, who made the case very cogently. Of course, there is a clear distinction in many cases with regard to reserved matters. I am coming to the point raised by my noble friend Lord Sanderson which was picked up by the noble and learned Lord, Lord Boyd, as to what is reserved. It is not just that the genie is out of the bottle but paragraph 2.5 of the White Paper, published in 1997 as a prelude to the referendum and the Scotland Bill and Act states:

“The Scottish Parliament will also be able to examine devolved matters and debate a wide range of issues of interest and concern in Scotland, whether devolved or reserved”.

My recollection of the debates all those years ago was that it was understood that there would be such debates.

I also seem to recall in the early days of the Scottish Parliament, with our fledgling coalition between the Labour Party and the Liberal Democrats, that the Scottish National Party Opposition liked nothing better than to identify a reserved matter at Westminster where the Labour Party and the Liberal Democrats were on opposite sides of the argument. The SNP would wish to debate those Motions to try to drive wedges through the coalition and we usually found some way out, either by having no executive line or by tabling an amendment recognising the position of both parties. After a while the SNP gave up because it realised that it was not having the desired effect of driving a wedge between the coalition partners.

On occasions it will be necessary for the Scottish Parliament to discuss reserved matters when changes have been made that have an impact in Scotland. For example, in November last year the Parliament debated maritime safety and coastguards. I certainly share the view of the noble and learned Lord that it would be allowed if it was making representations to the UK Government. One can imagine many Motions starting with the words, “This Parliament calls on the United Kingdom Government to”, for example, “not allow the Bank of England to become the bank of last resort”, or whatever. It would not require too much ingenuity to do that.

The noble Lord, Lord Foulkes, had ministerial responsibility for international development matters in the previous Administration. While that area was a reserved matter, none the less there was a Scottish interest that was considered legitimate. I pay tribute to the work that was done in the then Scottish Parliament and Executive by the noble Lord, Lord McConnell of Glenscorrodale, in taking forward and developing a relationship between Scotland and Malawi. That was thought all round to be positive and helpful.

The noble Baroness, Lady Liddell, rightly highlighted the difficulties that people sometimes have in not knowing what the relationship is between the Scottish and Westminster Parliaments. They might read things into debates on foreign policy. Therefore, it is important that when people engage in matters of such sensitivity in whatever forum, they do so in a measured and constructive way. I remember—and not just because I took part in it myself—that one of the best debates in the Scottish Parliament was in March 2003, on the eve of the military action in Iraq. The view was that everyone else was talking about it so it would look very odd if the Scottish Parliament did not. There was no line from the Executive because the Labour Party and the Liberal Democrats took different views. It is worth recalling that I moved an amendment on behalf of the Liberal Democrats that opposed intervention in Iraq. Because of the myth that has built up, it is worth remembering that the Scottish Parliament approved military intervention in Iraq in its vote in March 2003, ahead of the event happening. However, by all accounts at the time, it was a good debate.

There will be occasions when there is an interweaving of the issues. My noble friend referred at Second Reading to the question of energy, which is a reserved matter. Renewable energy has been devolved. As the noble and learned Lord, Lord Boyd, indicated, powers under Section 36 of the Electricity Act give Scottish Ministers substantial powers with regard to the licensing of power stations. There is a connection here—even an interconnection—which makes it important that both Parliaments and Governments must co-operate in trying to ensure that, where there is shared responsibility, the issues are properly addressed.

[The Duke of Montrose]

My Lords, perhaps my noble and learned friend could help me. As time has passed and habit has developed, we have found that the Scottish Parliament can discuss anything that it wishes, and express opinions. If something like the amendment of the noble Lord, Lord Foulkes, was passed, it would be limited to things that it wished to refer to this Parliament. Of course, discussion on the question of a referendum is probably something that the Scottish Government could say was referable to this Parliament. My noble and learned friend talked about the resolutions that were passed by the noble Lord, Lord McConnell of Glenscorrodale, on helping Malawi. Is there any limit to the amount of money that the Scottish Government can spend on things that are not devolved? It would be interesting in particular to know how much money they would be allowed to spend on a referendum. My noble and learned friend will know that there is an 80-page Bill attached to the consultative paper that was produced by the Scottish Parliament. It did not just drop out of the sky in a pre-formed manner. A great deal of time and expense was put into it.

[Lord Wallace of Tankerness]

The first thing I will say in response to my noble friend is that this is not something that has just grown up over the years. As I indicated, it was anticipated from the outset—in the White Paper in 1997—that there would be this opportunity. On the specific case of Malawi, there is a provision in the Scotland Act that allows Scottish Ministers to give assistance to UK Ministers and the UK Government. The co-operation at the time between the international development department and the Scottish Executive allowed that to proceed.

My noble friend raised an important point about a referendum. The United Kingdom Government made it very clear, in our consultation paper of 10 January, that the Scottish Parliament cannot legislate on reserved matters, including on an independence referendum. We have also indicated a preference for a Section 30 order, as have the Scottish Government. By the very nature of a Section 30 order, it deals with things that are currently reserved. One of the earliest was on railways. Therefore it is inevitable that there will be some expenditure and some legitimate activity by Scottish Ministers, who have to discuss and negotiate the terms of any order—which, by definition, must relate to a reserved matter—but look forward to agreeing between the two Governments to put a Section 30 order to both Parliaments. That is clearly why it is important, not just in the context of a referendum but in the context of other areas where a Section 30 order has been used where there has been a transfer of powers from one Parliament to the other, that there is proper co-ordination and consideration. Indeed, in terms of a number of powers in this Bill, there has clearly been discussion between both Governments.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, I must say that I found the previous debate fascinating. I do not think that I understood more than half a dozen words of it but I am sure that every lawyer present—and there are quite a few of those—understood it all. It was enlivened only at the end by the anecdote of the noble Lord, Lord Steel.

[The Duke of Montrose]

Move your amendment.

[Lord Foulkes of Cumnock]

I am very happy to do as the noble Duke, the Duke of Montrose, instructs me. After all, one of his ancestors was beaten by Cromwell. Is that right?

[The Duke of Montrose]

He was never beaten by Cromwell.

[Lord Foulkes of Cumnock]

My history is wrong; I shall have to check with the noble Duke afterwards.

The amendment would set up a general review of the electoral system for the Scottish Parliament, and it is about time that we had such a review. As was said in one of our earlier debates, the additional member system was very new to Scotland—and to the United Kingdom. It is similar to the German system but was very new to us. It was devised through multiparty discussions—not all parties were involved—as to what might be a suitable proportional system to ensure that no party would have an overall majority, an issue to which we will come back; and to ensure that all parties were properly represented in the Scottish Parliament.

However, because the system was new, my recollection is that it was recommended that there should be a review after two Sessions of the Scottish Parliament. We are now into the fifth Session and there has been no review. It is about time that we had one and, as I understand it, it is our responsibility to suggest, if not actually to set up, a review. It was recommended by the Arbuthnott committee, and I shall come back to that in a moment. If I may mention him, even one of the architects of the additional member system or at least one of the people involved in the discussions that led up to it, the noble Lord, Lord Steel—I blame other people for the system—has been reported as saying he believes that it is no longer fit for purpose. I have spoken to a number of people who have come to the same conclusion.

Let me deal with one or two of the problems. First, we have two types of MSPs—list Members and constituency Members. When the system was set up, the division between them was much greater than now. There has been some attempt to bring them together and to reduce the differences. Nevertheless, it is clear that constituency Members have the primary constituency responsibility. Regional Members, who have responsibility for a whole region, in the past few Parliaments have been increasingly requested and required to take on responsibility for individual cases referred to them. What is of course happening is that members of the public go first to their constituency Member who takes the matter up with officials and resolves the problems, if possible. However, some problems do not have a resolution. Those of us who have been Members of Parliament will know that problems can be intractable. However, the individual constituent does not necessarily think that and then says he will go over the head of the constituency Member to the regional Member. Later on, if the regional Member cannot deal with the problem, it comes to the MP. No doubt, if a senate were to replace this place, and if the MP could not deal with the problem, the constituent would go to the senator. That is a debate for another day.

There is a division between the types of MSPs. They have different workloads; there is overlap, competition and confusion between them. We heard earlier that some regional MSPs target constituencies. They set up offices and work in constituencies with a view to fighting the sitting MSP at the next election. The system seems almost designed for them to do that. Having two types of Members creates a problem.

Secondly, there is confusion in voting. Members will understand that and will have seen it happening. When you explain to members of the public that they have two votes, they find it difficult to understand the purpose of those two votes. It is difficult to explain their purpose. We in the Labour Party—those in other parties do exactly the same—say, “First vote for the constituency member and then vote for the party”, but it is inevitable that someone will say, “Okay, I’ll give my first vote to this Labour constituency member, but I like the Greens”, or the Liberal Democrats, “as well, so I will give them my second preference”. Sometimes there is confusion that it is a preference vote, which of course it is not; it is a different voting system.

Arbuthnott stated in his report:

“The Commission found that there were problems with the public understanding of the electoral system”.

The report states that especially confusing was the regional vote, which the public believed was a second preference vote. Survey data indicated that a significant proportion of people did not understand how seats would be distributed within the Scottish Parliament.

I now want to tell you briefly about my experience. I was asked by the noble Lord, Lord McConnell, when he was First Minister, whether I would help to lead the Labour campaign in the Lothian region. I agreed to do that. He said: “George, let's put you on the list”. I put my name into the hat and we had a ballot among Labour members in Lothian and, lo and behold, I came top of the list, so I was number one, on the understanding that never before had any Labour member been elected for Lothian. I told my wife that there was no way I would be elected. I told the Chief Whip here, because I was a Member of this House, “Don't worry, I will be here every day because there is no way I will be elected”.

I campaigned for the constituency members of the marginal seats to ensure that I was not elected. Imagine that. You are a candidate and you campaign for the constituencies just to ensure that you do not get elected. I did all my campaign work in two marginal seats: Central Edinburgh and Linlithgow, which we held. Unfortunately, we lost two seats that we thought were safe. I thought, “That doesn’t matter, the Greens always get two in Edinburgh, there is still no way that I will be elected”. However, the Greens did not do so well in that election. I was at the count walking up and down. The husband of Sheila Gilmore, who is now Member of Parliament for East Edinburgh, Brian Gilmore, who is head of the statistics department at Edinburgh University, came up to me and said, “George you’re going to get elected”. I said, “No, no, I’ve told my wife. I’ve told the Chief Whip”. Brian is the best statistician I know. I phoned Liz and said “There is a chance that I may be elected”. She said, “What?” I said, “I’ll phone you back later”. An hour later, she had had the chance to adjust to all that, and I left Steve Bassam until the following week. I was elected because of the system. I had not campaigned for myself. I had spent not one penny on the election. I produced no election leaflets whatever. I held no meetings at all for that election. It was astonishing, but there I was, a Member of the Scottish Parliament.