Scotland Bill

Duke of Montrose Excerpts

Wednesday 28th March 2012 Lords Chamber

[Lord Forsyth of Drumlean]

I beg to move Amendment 12 standing in my name. I do not intend to move or speak to Amendment 13. This is a very straightforward amendment. I hope that I have caught the Minister on a roll and that he might feel able to accept my amendment. I am tempted to get my noble friend Lady Saltoun to move all my amendments. She speaks very briefly and the Minister says yes. Perhaps there is much to be learnt from that.

We discussed this issue in Committee and I will not go over all the arguments but essentially the Bill devolves control of speed limits to the Scottish Parliament, so we will have different speed limits north and south of the border, or the prospect of that happening. I think that is absolutely ridiculous, but given that that has been agreed by the Calman commission, and is stated in the report and in the Bill, and given that it was a manifesto commitment to implement the Calman proposals, I will not argue against the principle of the Scottish Parliament having the power to set speed limits. However, if you are going to do something like that, you need to do it properly. The Bill gives the Scottish Parliament the power to decide speed limits for motor cars but not for caravans or HGVs. It is a nonsense to have the Department for Transport responsible for some speed limits in respect of some categories of vehicle while the Scottish Parliament is limited to others. My amendment may not be perfectly drafted but the sense is clear, which is that if we are to have the Scottish Parliament taking responsibility for speed limits, it should do so for every class of vehicle and not for particular classes of vehicle.

I know that my noble and learned friend Lord Wallace and my right honourable friend the Secretary of State have been in discussions with the Department for Transport. I know that it is not always easy to get agreement on these matters but I very much hope that my noble and learned friend’s well known skills in advocacy will enable him to accept this amendment if for no other reason than that it makes for good legislation and for clarity on the statute book, which is very much required. It is rather ironic that I should put forward an amendment which seeks to give more power to the Scottish Parliament. I beg to move.

[The Duke of Montrose]

I am very interested in this issue, on which I spoke in Committee. However, I am still rather puzzled as to what the Scottish Parliament will gain from this aspect of devolution because, as far as I can see, it already has powers to introduce any speed limit that it wishes on any road. As I drive along roads in Glasgow and out in the country, I come across speed limits that are set at 40 miles an hour and 50 miles an hour. Therefore, I hope that the Minister will indicate why this aspect of devolution is required.

[Lord Browne of Ladyton]

My Lords, I support the noble Lord’s amendment. My reading of the Calman commission report is that it made no distinction between the types of vehicles that should be included in this aspect of devolution. I believe that this amendment supports the Calman recommendation and that the power should be devolved in full, as was recommended by that commission. I agree with the noble Lord, Lord Forsyth, that the omission of HGVs would create confusion on Scottish roads, should there be an unnecessary change of speed limits.

When this issue was raised in Committee, I think the Minister said that the distinction arose as a consequence of the development of signage, which was deeply convincing. However, he also wisely indicated that it would be proper for him to take the issue away and reflect on it. Therefore, the signposts are clear. The House’s position is well signposted for the noble and learned Lord. I hope that he has followed the direction of those signposts and has persuaded his colleagues in the Department for Transport that this is a common-sense proposal. I will resist the temptation to speak to Amendment 13, which I would have supported had the noble Lord spoken to it. As he did not, it is not appropriate for me to speak to it.

Scotland Bill

Duke of Montrose Excerpts

Wednesday 21st March 2012 Lords Chamber

[Lord Wallace of Tankerness]

Indeed, not only would it be debated but it would be voted on in both the Houses of this Parliament. If we move into Committee, we can probably have a much wider debate on these matters.

[The Duke of Montrose]

My Lords, we are up against a slight hoolie on this procedure. The interesting Statement given to us by the Minister shows that quite a lot of the measures that are currently in the Bill have been withdrawn, so it is simplified from that point of view. The question then is whether what we are left with is purely a framework Bill into which all sorts of other legislation will be brought. However, from the point of view of this House, it would be a great shame if the legislation on the referendum were not set out in the Bill because there is a strong restraint on this place in that we never vote down secondary legislation, which is what will come before us if we use the Privy Council route.

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[Lord Foulkes of Cumnock]

My Lords, I welcome the fact that a legislative consent Motion has been agreed. I also welcome its terms; I mentioned that earlier, and we may have the opportunity to discuss it later on. However, I want to refer briefly to the very important point made by the noble Lord, Lord Forsyth, almost as an aside in his introduction. It was about the speed by which this legislative consent Motion was agreed within the Scottish Executive.

At the end of this week, I am going to one of the most newly independent countries to talk about its request for accession to the European Union. The EU has made it clear to that country that it will not get membership—I am sure that the noble Lord, Lord Williamson, knows exactly what I am taking about—until it can show that there is a clear separation of powers between the legislature, the Executive and the judiciary. It is right that the EU should impose that condition upon the application, and we are going to discuss it and what needs to be done to change the arrangements in the country’s constitution.

It occurs to me now that the situation in Scotland, which has come about because of a series of events, is presided over by someone chosen by the First Minister, and that there are committees—my noble friend Lord McConnell knows more about this than any of us, and I know that the noble Lord, Lord Steel, has looked at it carefully—which were supposed to be the checks on legislation as it went through and to challenge and question what the Executive were doing, as indeed they did until the most recent election in Scotland. These committees have SNP majorities. With committees here, where there is a government majority in the House of Commons among committee members, we get a degree of independence and challenge to the Executive. There is none of that in Scotland now.

Even here in the Cabinet—if the situation is still the same, and I understand that it is—before agreement is finally reached, a letter or memorandum is sent around the various departments concerned, agreement has to be reached by the department and there is some consensus. That takes time and some thought. In Scotland now, all it needs is for one man to make a decision that something will happen and it is automatically agreed by his Cabinet and Executive, which are beholden to him, and by his legislature, which is also beholden to him. That is not good for democracy. It would not be acceptable if an independent Scotland applied for membership of the European Union, which is another reason that could rule it out. That situation is very worrying and something that we have not really addressed in this Committee but should have done at some point.

Apropos this concern, I said jokingly in a tweet yesterday—the noble Lord, Lord Forsyth, laughs, but this is a modern form of communication and even people of my age have to get used to it—that Scotland might need a second Chamber, and I referred to it mischievously, as I have done before, as a “House of Lairds”, which is just a name for it. I was not suggesting that the hereditary Peers from Scotland should be recalled for that purpose—certainly not the noble Earl, Lord Erroll, for example, but that is another story. Interestingly, from a number of people on Twitter who do not normally agree with me I had a lot of agreement; they are genuinely worried that there is no check and balance on what is decided by the Scottish Executive. This issue is worrying, and it is time that those of us from Scotland who are concerned about Scottish democracy paid some attention to it.

[The Duke of Montrose]

My Lords, I would like to probe a little further the question that my noble friend Lord Forsyth has raised about where we stand on legislative consent Motions. I do not know if what I have will throw any more light on the topic but, as noble Lords will know, we have spent quite a long time considering when a legislative consent Motion might appear. I draw to your Lordships’ attention that there is enough evidence from what Ministers have told us that primary legislation does not require legislative consent.

I am sorry to see that the noble Lord, Lord Sewel, is not in his place because much of what I have to talk about refers to what he told us in this House in 1998. He and others in the House will recall that in the Committee stage of the Bill the question of an application of an Order in Council as being the route by which amendments to Schedule 5 could be achieved was discussed. It is just possible that some people’s recollections might, like mine, be a little hazy since most of this discussion took place at around 11 pm—something that we were beginning to get used to the other day. There was a serious probing amendment, which said that the power to use the Order in Council mechanism should be removed in regard to Part I of Schedule 5. The mechanism was insisted on by the Minister because it was the Government’s intention to make it a condition of procedure that the Scottish Government had to agree to alterations to Schedule 5. Great emphasis was placed on this, which was considered the unequivocal virtue of the Privy Council process. However, the Minister’s view was clearly that primary legislation did not require the agreement of the Scottish Parliament; this can be found in Hansard at col. 849 on 21 July. Therefore, the Scottish Parliament would officially have no say in any primary legislation.

Here, today, we will be only too aware that on previous days the Committee has endeavoured to add amendments to the Bill that would bring in more detailed recommendations by the Calman commission and others. So far, all these efforts have been rejected and many of the amendments at this stage appear to aim to introduce them using the Privy Council route at a later stage. From the approach taken by the Labour Government before us, it seems that any or each of these Orders in Council will properly be subject to a legislative consent Motion from the Scottish Parliament, which is different from the one that we are talking about today. As we have proceeded with this legislation, a great deal has been made of the idea that we are looking for the completion of the Motion before we get on to the Bill.

It is important that the procedures that are required should be absolutely clear. Since this is primary legislation, it would appear—from applying the explanations that were offered to us—that the legislative consent Motion is not strictly necessary for the Bill but would be for the statutory instruments to implement it. Could the Minister tell the Committee whether this argument for seeking some sort of agreement with the Scottish Parliament is just part of a concordat or is being introduced for politeness, or whether some legislative measure has recently been introduced that requires its fulfilment? If not, is it not true that in hard legislative terms the consent of the Scottish Parliament is not required?

[Lord O’Neill of Clackmannan]

My Lords, at some stage I think we were concerned that this might be a complete waste of time if we were not going to get a legislative consent Motion. Whether it was necessary was not the issue. It was a question of whether there was a nod of approval or acceptance from the Scottish Parliament.

In our lengthy debate last Thursday, some of us raised our concerns about what we considered to be the inadequacies of the committee system in Scotland. It would appear that this concern over those inadequacies is shared by the First Minister in so far as he pays attention to them. We are continually assailed in the Scottish press by the question of which country Scotland should be compared with. Should it be Norway or Iceland? It is not Iceland any more and it certainly is not Ireland. Perhaps Belarus would be an appropriate example of a northern European country that operates on the whim of its leader. However, that will be regarded as an insult to Mr Salmond. Such is his sensitivity and the thinness of his skin that if I were to make such a suggestion, I do not know whether I would get off a plane at Edinburgh Airport tomorrow night, although I would be happy to have a go.

We are also indebted to our new communicator—the new electronic man behind me, my noble friend Lord Foulkes. I have heard it said that he has been called a Twit. I do not think that is an unparliamentary word; it may well be appropriate in this case. I have never known the noble Lord, Lord Foulkes, to express himself in anything like as few words as 140. I am sorry; I meant to say 140 characters. I do not know whether there is a sequential tweet here, but perhaps the relevant material could be placed in the Library so that we could see the Foulkes Twitter sequence.

Coming back to the point, it would be helpful if the Minister could give us some indication of the conversations that he had with the First Minister and how this concordat has been arrived at. If we can reach agreement on that matter so quickly, perhaps other problems can be dealt with in a similarly efficient, if not particularly democratic, way.

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[Lord Wallace Tankerness]

It is generally the case for all orders that they cannot be amended. However, in earlier exchanges, the noble Lord, Lord Foulkes, asked whether there might even be a draft order. Actually, it was the noble Lord, Lord Sewel. My apologies —it seemed to happen so recently. He raised the possibility of a draft Section 30 order. I indicated then that if it related to the important issue of the referendum, we could take the opportunity of the debates that we are, I hope, about to have to get the reflections of your Lordships on these matters.

[The Duke of Montrose]

I am most grateful to my noble and learned friend for giving way. I am very interested in where he has gone with his explanations. It has been an interesting discovery that Section 30 orders can be applied to devolved and non-devolved matters. Section 30 orders can be applied within the legislation. If it is something included in an Act—this is the first time that we have had a new Bill since the 1998 Act—it seems that the legislation does not require the consent of the Scottish Parliament. This is the first time that the devolution guidance note has been before the Committee. It would be interesting to see the whole of the devolution guidance notes so that the Committee is aware of what the noble and learned Lord has to deal with in his negotiations with the Scottish Parliament. We are getting closer to where the legislative terms lie.

[Lord Wallace of Tankerness]

I am grateful to my noble friend for giving me an opportunity to make things clear. I rather suspect that the devolution guidance was placed in the Library by the previous Administration, but if there is any need to ensure that it is taken from the back shelf and made more readily accessible, I am sure we will see to that.

Perhaps it is my fault for not having explained it, or perhaps we have just glibly used the expression “a Section 30 order” without explaining it. A Section 30 order is not about dealing with things which are currently devolved. The purpose of a Section 30 order is to transfer issues which are currently reserved under Schedule 5 and devolve them to the Scottish Parliament. Perhaps one of the best examples of that since the Scottish Parliament was established in 1999 is the devolution of railways. There was extensive discussion and negotiation between the Scottish Executive and the United Kingdom Government. A Section 30 order was brought forward to bring about the devolution of railways to Scotland. Railways were not previously devolved. There were limits on that, as the noble Lord, Lord McConnell, will no doubt remember. Section 30 orders do not deal with matters that are already devolved. They are to confer on the Scottish Parliament devolved responsibility and powers in areas that are currently reserved. That is why it is important that they have to be passed by both Houses, as well as asking the Scottish Parliament, “Do you want these powers?”.

[The Duke of Montrose]

My noble and learned friend is describing what has been the habit of the use of Section 30 orders, but Section 30 states:

“Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient”.

Therefore, it can be used for both devolved and reserved matters.

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[Lord Wallace of Tankerness]

My Lords, I do not think anyone is suggesting putting on the ballot paper, “Do you think it is legal?”. That would ultimately be a matter for the courts to determine. The collective view is that we should find a way forward that, as best as anyone can, puts that question beyond doubt. That is why we recommend a Section 30 order as the best way of achieving that.

Let me make progress and allow others to contribute. Early analysis of the consultation responses shows clear support for a referendum with a single question on independence. We will take this support for our position into discussions on the Section 30 order. We must be clear that the Scottish Government in their own consultation paper state that their preference is for a single question on independence.

Finally, on the amendments that consider whether a referendum on independence should be held in Scotland or across the United Kingdom, I readily recognise that a decision for Scotland to leave the United Kingdom would have significant implications for those left in the remainder of the United Kingdom. However, it has already been articulated by the noble Lord, Lord Reid, that the question of whether Scotland remains part of the UK or becomes independent is for the people of Scotland alone to answer.

The noble Lord, Lord Foulkes, said that we should set some targets. I hope that in this debate and the debate on the next group of amendments the Government can get a flavour of what your Lordships believe are the important targets and issues that we should strive to achieve in subsequent negotiations.

[The Duke of Montrose]

The Minister has been most helpful in explaining the Government’s position. There is one extra element that it would be interesting to know about: would the Order in Council be specifically limited to one referendum? Multiple referendums would raise even more seriously the problem of the involvement of the other parts of the United Kingdom that the noble Lord, Lord Reid, is worried about.

[Lord Wallace of Tankerness]

My Lords, I am quickly trying to look at the draft Section 30 order that was attached to the consultation. It provides for just one referendum.

Scotland Bill

Duke of Montrose Excerpts

Tuesday 28th February 2012 Lords Chamber

[Lord Curry of Kirkharle]

I do not for one moment want to contribute to the history lesson but can contribute on the basis that I served on the Crown Estate for eight years. I was actively involved when commissioners from England, Scotland or Wales were appointed to the board of the Crown Estate and can assure noble Lords that it takes the process of appointment very seriously indeed. Advice is taken on the process itself, but it is a deliberate policy of the Crown Estate to appoint someone of stature from Scotland, who is going to contribute on behalf of Scotland, has a good understanding of the Scottish rural and fisheries scenes, and as far as possible will build a good relationship with the Scottish Parliament. I am reasonably relaxed about the precise qualifications that the amendment suggests. It is quite possible to encourage a CPD programme, once the commissioner has been appointed, to ensure that the commissioner is fully equipped to represent all the interests in Scotland.

I should just add that the Crown Estate has been very active in investing in Scotland. The whole commission is very committed to the Scottish agenda and will no doubt continue to be committed to it. I will also correct an earlier comment—the Crown Estate certainly has fish-farming interests in both Orkney and Shetland. I have visited both of them on a number of occasions wearing my Crown Estate hat and tried to build reasonable relationships with the fishing communities there.

[The Duke of Montrose]

My Lords, the noble Lord, Lord Curry, has talked about fishing in Scotland, and my noble friend Lord Mar and Kellie talked about the Crown Estate Commission being set up before the Act of Union. There are some areas of the foreshore of Scotland and some fishing areas that do not belong to the Crown Estate because of historical precedent.

[Lord Lyell]

I am most grateful to my noble friend Lord Selkirk for his amendment and strongly support it. I had the honour to be the apprentice of the Earl of Mansfield, who was not just Crown Estate commissioner for Scotland but first commissioner for the United Kingdom, which shows that Scotland is often best throughout the United Kingdom. I hope that what my noble friend has said in the course of this discussion will be taken on board and that my noble and learned friend will be able to accept this very wise piece of advice.

--- Later in debate ---

Moved by

[The Duke of Montrose]

47: Clause 24, page 17, line 6, at end insert—
“( ) Section 89 of the Road Transport Act 1988 (tests of competence to drive) is amended as follows.
( ) After subsection (3) insert—
“(3A) The Secretary of State shall ensure that tests under this section reflect the content of regulations relating to drink driving limits made by Scottish Ministers under section 9(3) or 11(2).””

[The Duke of Montrose]

My Lords, in moving Amendment 47, I shall speak also to Amendment 50 in this group. We are dealing here with two further areas in which the Calman commission has taken up the wishes of the Scottish Executive to exercise more power: the setting of drink-driving limits and the setting of speed limits. Amendment 47 amends the Road Transport Act 1988 and would provide for regulations made by Scottish Ministers on drink-driving limits to be referred to in the regulations made by the Secretary of State with regard to the driving test—which, presumably, should still be the same across the United Kingdom. The amendment was suggested by the Scottish Law Society, among others, and is more or less a tidying-up exercise.

I notice that some of the other amendments have been tabled by noble and learned Lords opposite, and I feel slightly in awe of such learned names as appear attached to them. My amendments are directed solely at the Road Transport Act. It is interesting that none of those noble and learned Lords has objected to the devolution of powers on drink-driving, but some of the amendments in the group concern the devolution of speeding. It will be interesting to see what is brought up on that front. Of course, any variation will immediately bring complications for both learner drivers and visitors. The reason for my amendment is that any regulations made by Scottish Ministers with regard to drink-driving limits should be made known to any person submitting himself to a test of competence to drive.

Amendment 50 would provide that any regulations made by Scottish Ministers with regard to traffic regulation on special roads, general provisions as to traffic signs and temporary speed limits would appear in the driving test in a similar way to the issues I raised under my previous amendment.

Section 38(2) of the Road Traffic Act, which lays down the provisions affecting the Highway Code, gives the Secretary of State sufficient powers on his own to carry out the changes proposed in the amendments tabled by the Opposition Front Bench. I should not have thought that all those details about the Highway Code need to be in the Bill. I have received a briefing that may have emanated from my noble and learned friend on the Front Bench which seems rather to agree with that; he may have a similar view, and I look forward to hearing what that is. I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I think it is in order for me to speak to Amendment 48, which is in this group, at this stage.

First, I must comment on the amendment moved by my noble friend the Duke of Montrose. There is much talk in Scotland about so-called devo-max, which those talking about it find it almost impossible to define. This seems to me to be pretty close to devo-max. I cannot for the life of me see why we need to have different speed limits or different rules relating to drink-driving between Scotland and England. That will create particular problems for people who live on the border and are driving on roads which do not follow the geographical border. This seems to me to be absolutely devo-max and devo-plus. These proposals have come about because all the parties got together in the Calman commission to try to prevent the nationalists winning a majority in the Scottish elections and thought about everything but the kitchen sink that they could throw into the Bill—which, as usual with legislation these days, was not given great scrutiny in the House of Commons. Here we are in the Lords, looking at this stuff now. The Highway Code and the rules for driving motor cars are complicated enough without there being different rules for different parts of the United Kingdom, which is just plain silly. However, it is in the Bill and the Government appear to be committed to it, so we have to deal with it as it is.

Having said that, I am extremely grateful that the Calman commission, on which a number of my noble friends served, did not in its enthusiasm decide that it should give the Scottish Parliament the right to decide which side of the road we should drive on—I do not know whether it was suggested; perhaps my noble friend Lord Selkirk of Douglas might be able to advise me on that. I make that point not just flippantly, because it is evident that the Bill as drafted gives the Scottish Parliament the power to decide the speed limit for motor cars but not that for HGV lorries. Had it been able to decide which side of the road to drive on, it could have been disastrous, because we would have had cars driving on one side and HGV lorries on the other, and we would have had a head-on collision.

I cannot for the life of me imagine why a Bill, which has been before Parliament now for nearly two years, has been through all its stages and been discussed by the Scottish Parliament, contains an anomaly whereby it makes provision for setting the speed limits for cars but not for HGVs. To give credit where credit is due, the parliamentary committee which looked at the Bill in the Scottish Parliament identified that anomaly. It is absurd that, at a time of great austerity and when local government has had its source of revenue through council tax frozen, we have a proposal that all road signs and speed limits should be able to be changed in Scotland but only in so far as they relate to motor cars but not HGVs.

I received a briefing for this Bill from the Whips’ Office whose contents I suppose I am not allowed to reveal because they are secret. It indicated that if I were to press the amendment my colleagues should resist it because, if we included HGVs as well as motor cars in the Bill, it would result in the road signs having to be changed. We would be in the absurd position where we would have to have road signs that related to the UK regulations for HGVs and road signs which were changed for motor cars, so we would have two sets of road signs. This is good news if you make road signs, but very bad news for the taxpayer.

My guess is that what has happened here is a typical intergovernmental dispute. I suspect that the Department for Transport is digging in its heels to maintain control over HGVs and the Scotland Office is saying, “Well, we’ve made this promise in Calman, so we’ll just leave it in the Bill and hope no one notices”. Amendment 48 establishes a principle which I am sure my noble and learned friend can happily accept because it certainly covers common sense, and I have pleasure in proposing it.

[The Duke of Montrose]

I do not disagree with my noble friend Lord Forsyth, but is it not true that the speed limit for HGVs is already low enough for the Scottish Executive not to wish to interfere with it? Is not their argument with private vehicles, which have a very much higher speed limit at the moment?

[Lord Forsyth of Drumlean]

I do not have a clue, but whatever they think, Governments, as I well know, come and go, as do Ministers and Administrations. We are talking about the making of the law here and there should be consistency. It seems to me that when you are driving from London to Glasgow, the amount you are allowed to drink, what you are allowed to do in terms of the speed limit in a built-up area and what you are allowed to do on motorways and dual carriageways should be the same as they were when I learnt the Highway Code. The Highway Code should be clear to everybody and mucking about with it in this way is just plain daft. None the less, that is what we are doing. However, if you are going to give the Scottish Parliament the power to decide on a different speed limit, it seems a bit odd that it should apply not just to motorcars but to all classes of vehicles. That is a very simple point.

--- Later in debate ---

As regards the speed limits, I know that I will hugely disappoint my noble friend and other noble Lords in saying that the explanation that was proffered concerned the development of signage, as he perhaps anticipated. I am aware that that will not satisfy my noble friend. In the light of what he and the noble and learned Lord, Lord Boyd, have said on this point, it is only proper for me to take that issue away and have further discussions with officials in the Department for Transport as I can see the force of the argument that he has presented. I hope on that basis of the reassurance that the matter will be further considered, he will be prepared not to press his amendment. I also hope that my noble friend the Duke of Montrose is reassured about some of the points that he made and will be prepared to withdraw his amendment.

[The Duke of Montrose]

My Lords, I thank all those who have participated in the debate. As noble Lords are aware, we have explored many avenues, although possibly not all, that could be exhausted on this topic. The noble and learned Lord, Lord Boyd of Duncansby, mentioned the main themes that have run through the debate such as road safety and which side of the road we drive on. However, it seems to me that if the alcohol driving limit is reduced to zero, using certain brands of cough mixture might get one into trouble.

I was grateful to my noble and learned friend the Minister for addressing my proposed amendments to the Road Traffic Act 1988. I purposely avoided tabling amendments to do with the Highway Code. It seems to me much more important at least to get the matter clear for people sitting the driving test. I shall read my noble and learned friend’s response, which was very detailed as this matter requires a detailed response. We have all been trying to avoid muddle. That theme seems to run through this group of amendments. My amendments do not seek to gainsay the recommendations of the Calman commission, but it seems to me that if any of these amendments are accepted, the two amendments standing in my name would need to be accepted also to avoid muddle.

[Lord Forsyth of Drumlean]

My Lords, I am most grateful to my noble and learned friend Lord Wallace, who did a formidable job of making bricks without straw. I am very disappointed that he did not tell us the Department for Transport’s arguments for having different speed limits for cars and lorries. Despite all the towns and byways that he mentioned on which separate speed limits apply, I am not aware of any town or community in Scotland that can set a speed limit for lorries as well as cars, which is what is proposed in the Bill.

I am most grateful for the assurance that my noble and learned friend will look at this. I take it from what he said that he is also looking at my Amendment 49 on penalties. I shall certainly be happy not to press my amendments and I entirely agree with my noble friend the Duke of Montrose that his amendments are also worthy of further consideration.

[The Duke of Montrose]

My Lords, I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

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[Lord Wallace of Tankerness]

My Lords, that is the stuff of the negotiation that takes places ahead of these Council meetings. It is important that there is that good co-operation. It would not be sustainable for someone in the United Kingdom Government seat at the table to articulate a policy contrary to the United Kingdom view. Obviously, one can imagine that if a Minister from the devolved Administration did not like it, he would not be jumping to be at the meeting speaking on behalf of the United Kingdom Government.

However, these negotiations take place and I recognise enough noble Lords here from my days in the Commons who took part in the fisheries debates. The noble Lord, Lord Sewel, was the Fisheries Minister and knows full well what the run-up to the December Council meeting in particular, and others, can be like. There is a negotiation to take place and a line has to be agreed in advance, not just between the United Kingdom Government and the Scottish Government but between the Welsh and Northern Irish Administrations as well.

[The Duke of Montrose]

Perhaps my noble and learned friend will tell me if I am wrong, but my impression is that currently the Scottish Administration feel that they should have the right to send the representative Minister in fisheries negotiations.

[Lord Wallace of Tankerness]

As I indicated, the request was for a statutory right to attend. In a hypothetical situation, even if they were to be the UK Minister, they would still have to articulate what had been agreed at a quadrilateral meeting as the United Kingdom line. It is important that we recognise that for the most part this process works and has worked well. It is sometimes not the perception that one gets, but a lot of hard work and effort is put into it.

It is also the case that, when Scottish Ministers hold meetings overseas, the United Kingdom’s diplomatic missions overseas offer them the same level of support as they would to United Kingdom Government Ministers and delegations. I certainly can vouch for that. Indeed, that was my understanding shortly after I took office as the Deputy First Minister in the Scottish Executive in 1999. The then First Minister, the late Donald Dewar, indicated to me that the then Foreign Secretary, the late Robin Cook, had made it very clear that he wished Scottish Ministers visiting foreign countries to be accorded the full facilities. Certainly, it was always my experience that the help was very considerable.

It is also important to remember that, when representing devolved issues, the devolved Administrations can play a valuable role in promoting commerce, industry and culture. When Scottish Development International, a part of the Scottish Administration, arranges visits with a ministerial involvement, it works to try to bring jobs, employment and investment to Scotland and the United Kingdom, something which would be beneficial to the United Kingdom as a whole.

The noble Lord, Lord Morgan, and the noble and learned Lord, Lord Boyd, referred to the Länder. Certainly, one of the strengths of devolution is that, whereas perhaps in the past the United Kingdom Government could not readily relate to or have engagement with Catalonia or Saxony, that is a level of engagement that Welsh Ministers, Scottish Ministers and Northern Ireland Ministers are able to have, which benefits the United Kingdom as a whole.

I fear that this amendment would introduce a statutory requirement which—I have already indicated that I share the analysis of the noble and learned Lord, Lord Boyd—would not work. As I have also indicated, there is a memorandum of understanding, or concordat, in place to ensure that any engagement with Scottish Ministers is conducted in a constructive way. I hope that that will reassure Members of your Lordships’ House. The noble Lord, Lord Foulkes, has facilitated an opportunity to discuss these issues and I hope that he will follow through on what he indicated and will withdraw his amendment in the light of these assurances. This has been a useful debate.

Scotland Bill

Duke of Montrose Excerpts

Thursday 2nd February 2012 Lords Chamber

[Lord Wallace of Tankerness]

My noble friend made a very powerful speech. However, we cannot make presumptions in that regard; nor can we presume what the shape of any licensing regime would be. The points that his colleagues in the gun trade are making may well help to determine the shape of that legislation.

Perhaps I may turn to my noble friend’s amendment. He has set out very clearly what he sees as the consequences of imposing restrictions on air guns in Scotland, if indeed the Scottish Parliament chooses to go down that route. He has highlighted how any changes will have implications for the trade and for the police not just with regard to licences but with regard to the financial burden that he has outlined, and he has suggested that they are consulted by the Scottish Government before any new legislation is introduced.

[The Duke of Montrose]

Perhaps my noble and learned friend could clarify one of the points introduced by the noble Lord, Lord Browne of Ladyton. The power in the Bill would presumably prevent the Scottish Parliament making any legislation on powerful weapons—it would be able to bring in regulation only on the non-powerful weapons—whereas what the noble Lord, Lord Browne, said might have been interpreted as meaning that it would try to regulate both.

[Lord Wallace of Tankerness]

I am not sure that that is the case. However, I think my noble friend is right that the power in the Bill does not relate to more powerful weapons. Especially dangerous air weapons are already licensed. We are providing Scottish Ministers with a power to put in place a licensing regime, as the noble Lord suggested, for air weapons, which are not regulated under the current GB framework. A very simple distinction has been made between weapons that are currently regulated and those that are not, and the devolution of power relates to those that are currently regulated.

--- Later in debate ---

Debate on whether Clause 14 should stand part of the Bill.

[The Duke of Montrose]

My Lords, in opening this debate on what is presently something of a probing Motion, I want just to draw the attention of the Committee to the fact that this and the two previous amendments have broached the subject of Westminster reserving powers that were originally part of the general devolution under the Scotland Act. This is certainly an area to which the original convention on legislative consent Motions applies. Not unexpectedly, this has caused a few ripples at Holyrood because it was beginning to look like there was something of a precedent that devolution could go only one way, and that was for it to be increased. The power being proposed is an implicit rather than an explicit power that is to remain with Westminster. There may of course be other powers in the 1998 Act that have yet to be explored, but in these proposals it is now obvious to everyone that new reservations are possible. At the same time, we need to be sure that what is being proposed is totally necessary. I wish to be sure that the Government have given enough thought to its implications.

The question of Antarctica is particularly interesting because one Scotland Bill committee of the Scottish Parliament felt that it could agree to this being included in the Bill, but the next committee came out and said that it would not agree. We still await the final outcome. Another reason for visiting Antarctica in our discussions is that 15 days ago it was the 100th anniversary of the arrival of a certain Captain Scott at the South Pole, and we want to pay tribute to him and to his colleagues on their efforts and their role in the influence that we have in that part of the world.

On a slightly lighter note, I should declare my interest in Antarctica, although it is not pecuniary in any way. As the chief of Clan Graham, I follow eagerly the influence of Grahams. We have Graham Streets, Graham’s Dyke and Grahamstown, but Antarctica is the only place in the world with territory known as Graham Land. Unfortunately, it was not named for an achievement on the part of any Graham himself, but is the result of the commissioning in 1832 by Sir James Graham, then the First Lord of the Admiralty, of an expedition led by John Biscoe.

Neither the United Kingdom nor Scotland would pretend that there was any territorial claim involved, but we are really dealing with a power of governance and administration. I note in passing that there has been a consultation on a new Antarctic Bill that ended on 12 February 2010 but which does not seem to have produced any follow-up. Perhaps it has fallen foul of the uncertainty about the various devolution proposals. Can my noble and learned friend the Minister tell us what interest the Scottish Government showed in the consultation, and does it appear that this is a power that the Scottish Parliament has ignored? In the first instance, it might appear to centre on the right to license expeditions and scientific research in the area. I would suggest that my noble friend Lord Forsyth knows a little more about this, having recently completed an expedition there.

British Antarctica covers a large area, being the area of ocean and land south of 60 degrees south latitude of the whole Antarctic area. I think that noble Lords will agree that there are great pressures currently facing the Scottish fishing industry with the endless red tape and restrictions under the revised common fisheries policy. When driven to it, fishermen might consider turning their attention to just such an area, where there is a potential commercial fishery for the Patagonian toothfish. There are of course other interests that might wish to expand their activities in Antarctica.

Of course, what we have heard is that the Scottish Parliament has not got around to discussing its committee’s recommendations, and unless the Minister can enlighten us, we do not know whether the Scottish Government consider that they have any interest in their current power in the area. A factor on which I am tempted to speculate is that their interest might be dampened by the consideration that, if they were required to act in the administration of the area, their current plans for a defence capability, the scope of which is supposed to be based on that of some of our Scandinavian neighbours, might require a good deal of re-estimation. I understand that they may be thinking of having an army of which 60 per cent would have the capability of being deployed in other parts of the world, but if their navy is limited to a few frigates and a variety of smaller boats with no submarines, there would not be much capability outside Scottish waters. A great attraction for the young used to be, “Join the British Navy and see the world”, but I suggest that that might become “Join the Scottish Navy and see St Kilda”. It might be a little speculative to think that, in considering this, the Scottish National Party sees that having a responsibility for this area might stretch what it has in mind in terms of providing fisheries protection or some other role, and there is no way that the type of defence equipment that Scotland is likely to have could be stretched in this field.

In spite of this sort of speculation, does my noble and learned friend know of any good reason why Scotland’s influence should be excluded from its possible responsibilities in this area?

--- Later in debate ---

I was also asked about the position of the Scottish Government. It is certainly my understanding that the Scottish Government have expressed no direct interest in Antarctic affairs and have no expertise to engage with future international negotiations in that respect. I therefore very much hope that by passing this clause we can regularise an important issue.

[The Duke of Montrose]

My Lords, I thank all those who have contributed to this discussion. It has been some time since Antarctica has been before your Lordships' House and covered in so much detail. It is particularly interesting to hear former Scottish Ministers voicing what the perspective was when they were holding office north of the border. I am glad to think that my noble and learned friend did not think that the Scottish Parliament would be less assiduous in maintaining the pristine nature of Antarctica because I am sure that they will have looked at that with great care.

Clause 14 agreed.

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.

Public Services Reform (Scotland) Act 2010 (Consequential Modifications of Enactments) Order 2011

Duke of Montrose Excerpts

Monday 17th October 2011 Grand Committee

[Lord McAvoy]

My response to that would be: not yet, because you never know what will happen. I am not called Thomas for nothing. What raises my suspicion is reading the words Representation of the People Act—although I know that this order is about care homes and such things.

The serious question I have for the noble and learned Lord, Lord Wallace of Tankerness, in agreeing to these bodies understandably and logically coming under the remit of the Scottish Executive, is: are any of them in any way involved with elections or referendums? I know that this might seem wild, but you never know. In the order is a whole host of regulations, so I want to clarify just to make sure. Are any of them involved in the staffing of stations, administration or anything to do with the practical running of referendums? I should like to know to be sure that that is not the case.

In addition, the memorandum states:

“Part 1 makes provision for the purpose of simplifying public bodies”,

but ends up by stating,

“and provision in relation to the regulation of officers of court”.

Again, would any of those officers of the court be involved in ruling on disputes about referendums or voting in any way?

I have no intention of repeating the explanation of the order by the noble and learned Lord, Lord Wallace of Tankerness, which was absolutely fine. I am very grateful to the noble Lord, Lord Maclennan of Rogart, for getting involved. Those are my only serious questions. I know that folk may dismiss them as scaremongering or fantasising, but in Scotland at the moment we need to keep a very firm check on everything that comes through.

[The Duke of Montrose]

My Lords, can my noble friend clarify a couple of points? I listened to him but did not catch the fact that a couple of Welsh measures have wandered into the Bill. It is very interesting to see them in there. Can he reassure us that the Welsh paragraphs are an exact translation of the previous ones, because my Welsh is not up to understanding them? How many times has this Parliament passed measures in Welsh?

[Lord Wallace of Tankerness]

My Lords, I thank my noble friends Lord Maclennan of Rogart and the Duke of Montrose, and the noble Lord, Lord McAvoy, for their contributions to this debate. Although technical, the points they raised are important. Perhaps I may say to my noble friend Lord Maclennan that a similar thought crossed my mind as to the necessity for this. The truth of the matter is that it is specified by the Scotland Act that some orders under it can be approved by way of negative procedure, but when dealing with amendments to primary legislation, Parliament in its wisdom in 1998 thought that that should be done by affirmative order. Indeed, it would be invidious to decide which ones were or were not controversial. On the previous order we considered there was agreement on all sides that it nevertheless related to changing the powers of officers of the UK Border Agency and HMRC with regard to periods of detention, which is a substantive matter. It might be invidious to try to make judgments as to which orders are controversial and which are not when they all come under the same Section 104.

On the points made by the noble Lord, Lord McAvoy, it is perfectly proper that he should be aware and alert—as he said, he was not called Thomas for nothing. I can assure him that as far as I am aware, and as far as we could trace, no body involved in this order would be involved in elections or referendums. One could perhaps use one’s imagination as to how Creative Scotland could be creative. However, strictly speaking, no body would have responsibility for the running of a referendum or election—subject to the example I gave in respect of care home managers. However, the important point is that the order updates the situation that already existed. The noble Lord’s other point was about court officers. I am advised that under the order, none of them would have a role to play in election work.

My noble friend the Duke of Montrose raised a question about Welsh measures. I am assured that it is an exact translation—although I have to say that I have to take it on assurance because I do not speak Welsh. It is probably a Measure of the Welsh National Assembly that is referred to here. Regarding some of the reciprocal arrangements between Scotland, Wales, England and Northern Ireland, what has been done in Scotland has implications in Wales. If the Welsh legislation is in Welsh, the amendment to it has to be in Welsh also. That is the explanation. As I said, I take that on trust because, regrettably, although I speak in this House for the Wales Office, I do not have Welsh.

I hope that with those explanations the order will commend itself to the Committee.

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.

Scottish Parliament (Constituencies and Regions) Order 2010

Duke of Montrose Excerpts

Tuesday 26th October 2010 Lords Chamber

[The Duke of Montrose]

My Lords, I am very interested in all that noble Lords have had to say so far, particularly the issues raised by my noble friend Lord Maclennan of Rogart. I do not know whether he was talking more in general terms, but I would be fascinated to know whether the Minister can tell us if the Scotland Act contains powers for amendment. The Explanatory Memorandum, which I, too, found extremely confusing, says that Section 113(5) and (6) are to do with the power to modify secondary legislation but on no account may they modify anything in the Scotland Act or subsidiary legislation under the Scotland Act “unless otherwise stated”. Paragraph 6(1) of Schedule 1 then comes into play, saying that the Secretary of State may make provision for giving effect to the recommendations of the Electoral Commission. That is where the powers to make alterations are.

All this takes us back to the Scottish Parliament (Constituencies) Act 2004. As the noble Lord, Lord Foulkes, will remember, a proposal had been put forward to reduce the number of Members in the Scottish Parliament, which was sternly resisted both by Scottish parliamentarians and by the party opposite. I remember being in this Chamber as we passed that Act, but the fact that it had to be a separate Act of Parliament probably means that there are not really powers within the Scotland Act to do much in terms of alteration. There would have to be a totally new Act. It is a puzzle why the Explanatory Memorandum says that any other reading would deprive the 2004 Act of any meaning. Presumably the Act stands on its own. We are proposing amendments to Schedule 1 to that Act and presumably the powers exist for us to do that.

[Baroness Adams of Craigielea]

My Lords, I did not intend to speak tonight but I hope that the Advocate-General will take note of the passion that is felt, particularly on this side of the House, about what is happening in the other place. He started by giving us a list of the people who have been consulted on the order. Unfortunately, those people will not be consulted again on the constituencies that are to be represented in general elections. It will be simply number crunching and a question of what we are about to receive from the other place.

I have given evidence to three Boundary Commission hearings, when my constituency of Paisley North was being thrown from one side of Paisley to the other. As my noble friend Lord McAvoy pointed out, people in local communities are passionate about what they feel about the community they live in and the people who represent them. I was reminded that my noble friend once laid a Bill about Rutherglen in the House of Commons—I was a signatory. Like him, I live in a satellite of Glasgow—Paisley, in my case—and, although we loved our big brother dearly, we did not want to live in his house, so I was happy to support my noble friend then.

I come back to the Boundary Commission hearings. My colleagues mentioned the late John Smith. The last time that I saw him was as he was getting out of a taxi returning from giving evidence to his Boundary Commission hearing and I was getting into the same taxi to go north to give evidence to mine the next day. He felt passionately about it. He had spent all that day doing it and he came back ebullient; he was convinced that he had won agreement to what he had put forward, as, in fact, he had. Fortunately, so did I the next day. But, with what is coming to us, we will never have to do that again, because it will not be a matter for the communities who feel passionately about their area, who know it best and whose children go to the same schools; it will simply be a matter of whether you make up the numbers. It is no wonder that people are uninterested in politics. When they are just part of the numbers game, they will never be interested again.