Air Weapons and Licensing (Scotland) Act 2015 (Consequential Provisions) Order 2017

Earl of Kinnoull Excerpts

Thursday 9th March 2017 Grand Committee

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Dunlop)]

My Lords, it may be helpful at the outset to remind the Committee of the context of this order. Its origins can be found in the tragic death in 2005 of two year-old Andrew Morton after he was shot in the head with an air rifle. His parents campaigned for “Andrew’s law” to ban air weapons in Scotland.

Such deaths are mercifully rare but attacks continue to happen. Air weapons accounted for almost half—158—of all offences allegedly involving a firearm in Scotland in 2015-16. The all-party Calman commission examined the regulation of bearing weapons as part of its wide-ranging review of the Scotland Act 1998. When the commission reported in 2009, one of its recommendations was that the regulation of certain air weapons be devolved to the Scottish Parliament. This recommendation was included in the Scotland Act 2012, which made amendments to the Scotland Act 1998. Provision to devolve the regulation of certain air weapons was set out in Section 10 of the 2012 Act.

In addition to the scrutiny that the 2012 Act had in the House, the Committee may recall that a number of noble Lords were members of the Calman commission: my noble friends Lord Selkirk and Lord Lindsay, the noble and learned Lords, Lord Boyd of Duncansby and Lord Wallace of Tankerness, and the noble Lord, Lord Elder.

The Scottish Parliament used its new powers in this area to enact the Air Weapons and Licensing (Scotland) Act 2015, which I shall refer to as the 2015 Act. It received Royal Assent on 4 August 2015, having been passed by the Scottish Parliament on 25 June 2015. Andrew Morton’s parents welcomed this new legislation. The 2015 Act introduces a new licensing regime for air weapons to maintain controls over the use, possession, purchase and acquisition of such weapons in Scotland. It broadly follows the principles and practices of existing firearms legislation that apply across Great Britain by setting out the air weapons which need to be licensed; allowing a fit person to obtain and use an air weapon in a regulated way, without compromising public safety; and setting out appropriate and proportionate enforcement powers and penalties to deal with any person who contravenes the new regime.

It is notable that, in advance of the new regime coming into force on 31 December 2016, almost 19,000 unwanted air weapons were surrendered to Police Scotland for secure destruction.

The order I present to your Lordships today is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient legislative provision in consequence of an Act of the Scottish Parliament. The order will enable Part 1 of the 2015 Act to be implemented in full by making the following consequential amendments to reserved legislation which extends across Great Britain, namely the Firearms Act 1968. It will make it an offence for a pawnbroker in Scotland to take an air weapon in pawn and it will impose penalties for this offence. It will allow a court in England and Wales to cancel, in certain circumstances, any air weapon certificate granted to a person under the 2015 Act. This extends the court’s existing powers to cancel a firearm certificate or shotgun certificate held by a person appearing before it. It will also allow a court in Scotland to order the forfeiture or disposal of any firearm—other than an air weapon—or ammunition found in the possession of a person convicted of an air weapon offence.

The UK and Scottish Governments, Ministers and officials have worked together to ensure that this order makes the necessary amendments to the Firearms Act 1968 in consequence of Part 1 of the 2015 Act. It represents the final step in the implementation of the new Scottish licensing regime for air weapons that will tighten controls over the use, possession, purchase and acquisition of such weapons in Scotland. I commend the order to the Committee.

[The Earl of Kinnoull (CB)]

My Lords, I thank the Minister for his customary logic and clarity in telling us about the proposed statutory instrument. I declare an interest: I have a firearm certificate from Police Scotland and I own an air gun. It is relevant to later in my short remarks that I bought it second-hand for £25. Living as I do in rural Scotland, I can tell the Committee that probably most homes in my area either own an air gun or have done so at some point.

I should make clear that everything I shall say in no way challenges the fact of the devolution of powers, or the fact that the licensing regime has been introduced. However, some people have expressed to me the opinion that the licensing regime is disproportionate, badly cast and impractical, and, having looked into, it I have some concerns.

The British Association for Shooting and Conservation has 144,000 members; I am not one of them. Around 12,000 members are Scottish. The BASC has given a briefing paper to all its members, from which I will read the concluding paragraph. I preface that by saying that at the start of this process there were an estimated 500,000 air guns in Scotland: that puts the figure of 19,000 into context. The report, Air Gun Licensing in Scotland a Costly and Bureaucratic Mistake, states:

“Currently, 60,000 people in Scotland already hold firearms licences. Increasing the licensing requirement to cover hundreds of thousands of people in Scotland plus visitors will place existing Police Scotland licensing staff under a massive administrative burden when offences have fallen significantly and the police are subject to pressure on both budgets and staffing”.


As the Minister pointed out, version 1.0 of the Guide to Air Weapon Licensing in Scotland of June 2016 states that the whole thing will broadly follow the principles and practices of existing firearms legislation. That is pretty onerous. There are seven different forms that you can fill out but the main form is number one; it is 12 pages long and includes lots of questions about health and about security in the home.

There is a warning that if you answer a health question with a problem, your GP will be contacted. The security questions at home are, of course, very similar to those in the firearms questionnaires that I fill out, which result quite rightly in visits to homes. With hundreds of thousands of people needing to apply for these licences, with warnings that GPs may be contacted and security may need to be checked in homes, and with a 12-page form that needs to be processed, my concerns reach not just to the BASC’s worries about the pressure on Police Scotland but to needless pressures on the National Health Service. GPs will not know everything and will have look in their files, as they will—I presume—have to write a report to say that a person is suitable for a licence. The cost of the licence is also quite a lot; it is £72 for someone aged over 18. Admittedly it is only £50 for a 14 year-old, but I put that against my original purchase of a £25 air gun.

The function of this House is scrutiny and the weapon we have is to ask the Government to think again. Of course, in recent days we have seen ourselves do that in a very public way. My question is: where we see something like this in the underlying legislation—something that I feel to be impractical and, in the round, bad news for the people of Scotland and disproportionate—should we just wave through a statutory instrument or should we ask the devolved Administration to think again? I have carefully reviewed the underlying Act—I have it here on my iPad—and I think it would be possible with the Act to have a much simpler system, which would be cheaper and would not use up the resources of Police Scotland or of the National Health Service in Scotland, and yet would give some element of comfort to make sure that the horrible crimes that can occur with these things are lessons. I would be very grateful for the Minister’s comments on this underlying constitutional issue.

[Lord Hope of Craighead (CB)]

My Lords, I have never owned an air weapon, although when I was younger I did fire one once or twice, but it was a very long time ago. I have come along to welcome this measure—not in any way to take away from the points that the noble Earl has raised—but I do so against a background for which I should declare an interest as a member of the Scottish Ornithologists’ Club.

I have been concerned for many years about the misuse of air weapons by young people, particularly in the countryside, who are tempted when they see, for example, a swan on a pond or a loch to shoot at it. I dare say it is a very tempting target for a young boy with an air gun. Of course, the injury that can be caused to these wild animals can be very disabling—not fatal, but it can considerably disable the individual bird and, if it is nesting, affect the lives of the cygnets or young birds that are being looked after.

Anything that can be done to restrict the availability of air weapons—excepting those such as the noble Earl and his family, who can no doubt be trusted to use them properly—should be done. I must confess that it never occurred to me as a little boy, or even today, to go to a pawnshop to buy one. I am quite interested as to why pawnshops have been singled out, but it may be that an example has been found of a pawnshop that had air weapons available which were of course not subject to the usual scrutiny that one would get from the reputable dealers. Closing off a loophole of that kind is welcome and I therefore applaud the instrument in that respect.

However, one question puzzles me—purely because the Explanatory Memorandum does not explain enough —which is the exclusion from new subsection (1ZB) of an air weapon. This is in the forfeiture clause, which provides for the forfeiture or disposal of any firearm, other than an air weapon, in Section 1 of the Act. I am not quite sure why that should be. If an air weapon is found, for example, in a pawnshop and the owner of the pawnshop is convicted of the offence, I would have thought that the sensible thing would be to take the air weapon into possession because the only person who has a claim to its ownership is the pawnshop owner; it has not yet been disposed of. It may be that I am missing bits of legislation elsewhere which would cover that but it would be helpful if the Minister was able to explain why air weapons are being excluded. I would be comforted if there was some other provision which enabled that forfeiture to be resorted to. But subject to that, and with very grateful thanks to the Minister for his helpful explanation of the tragic background to all these measures, I support the order.

Scotland Bill

Earl of Kinnoull Excerpts

Monday 29th February 2016 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, I have been provoked to make a contribution arising out of the nature of the debate. I hope it is not a question of piling Pelion upon Ossa for yet another lawyer to offer what may be an obstacle. The right of judicial review may apply in circumstances where either of the two institutions makes a decision that does not pass the test of reasonableness. If there were such an application for judicial review in relation either to the conclusions or to the implementation of the conclusions of this agreement, that would certainly bring the validity of the agreement under considerable scrutiny.

Others have referred to the imperfect nature of dispute resolution. In the worst case the Supreme Court, which has just been referred to, could find itself engaged in these matters. That is more akin, of course, to a Supreme Court in the United States rather than the one we consider here. Therefore, there might be fundamental constitutional implications and unintended consequences from what is proposed.

[The Earl of Kinnoull (CB)]

My Lords, I want to come in on a similar theme and echo the earlier words of the noble and learned Lord, Lord Hope of Craighead. At roughly one o’clock last Monday my email system received a helpful letter from the noble Lord, Lord Dunlop. I thank both Ministers, who have been unfailingly courteous and very helpful in these extraordinary circumstances. That was said earlier and I wish to say it as well. The letter I received at one o’clock on 22 February was extremely complimentary about the negotiating position of the Government. It enclosed a letter to Pete Wishart. Paragraph 3 of that letter said:

“The UK government agrees with the Committee that the Indexed Per Capita … model would ‘breach the second no detriment principle, that of taxpayer fairness’. This model would see Scotland benefitting from an ever-increasing share of income tax from the rest of UK, irrespective of the Scottish Government’s policy decisions or relative economic performance”.

That is clear.

The following day—less than 24 hours later—we were told that the fiscal framework had been agreed. Paragraph 17 of that states:

“For a transitional period covering the next Scottish Parliament, the Governments have agreed that the block grant adjustment for tax should be effected by using the Comparable Model (Scotland’s share)”—

that sounds okay—

“whilst achieving the outcome delivered by the Indexed Per Capita … method for tax and welfare. This will ensure that the Scottish Government’s overall level of funding will be unaffected if Scotland’s population grows differently from the rest of the UK”.

I know this point has already been put to the Minister but I put it forcefully again and ask whether those two paragraphs can be reconciled clearly for the House so that we can understand what happened. I suspect that, quite simply, the white flag was run up to conclude negotiations for political expediency.

I now turn to the review clause and to the point made by the noble and learned Lord, Lord Hope. Paragraph 23 states:

“The two governments will jointly agree the method as part of the review. The method adopted will deliver results consistent with the Smith commission’s recommendations, including the principles of no detriment, taxpayer fairness and economic responsibility”.

That means essentially that all one has managed to do is to kick the hand grenade six years down the line. It will blow up and there will be a terrible constitutional crisis in Britain. I agree with the noble Lord, Lord Campbell of Pittenweem, and other noble Lords that we need to head this off at the pass. I urge the Minister and the Government to do something about this issue before the Bill goes on to the statute book.

[Lord Kerr of Kinlochard (CB)]

My Lords, I, too, am very concerned about the review provisions. The noble Lord, Lord MacGregor, was absolutely right in what he said about the Barnett formula and I agree with every word. Of course it should be needs based. However, I fear that that pass is sold. It was sold in the vow; it was sold before Smith even started. It is a great mistake and very damaging but we are where we are.

I am struck by the same point that the noble Earl addressed on paragraph 17. We are saying there that in the fiscal framework talks both parties have agreed that the right block grant annual indexation mechanism should be the comparable model, but they have agreed that it will not be used up to 2021; the wrong one will be used. Then comes the review, with no terms of reference set out, and the decision-making machinery in the review is that both Governments have to agree. As the French say, rien ne dure plus que le provisoire—nothing lasts longer than the temporary. I am afraid that the can is being kicked down the road not only until 2021 but as far as the eye can see. That is a serious mistake.

I agree with the noble and learned Lord, Lord Hope, on the dispute settlement mechanism, which, on the face of it, simply does not make sense—ending up with, “if they do not agree there will be no fiscal transfer”. What is that? Is it a nuclear weapon in the hands of the Government so that the whole thing stops? Is it a plausible nuclear weapon? Is it a credible deterrent? I do not think so.

However, we are where we are. I greatly sympathise with the noble Lord, Lord Dunlop, who handles these matters very well, but what are we expecting him to do? Are we expecting him to tell us tonight, “Okay, we will change the fiscal framework because the House of Lords does not like it”? I do not think he can quite do that, though his skills are legendary. However, the noble Lord, Lord Forsyth, may have the answer in Amendment 68—not the amendment to which the noble Lord, Lord Higgins, drew attention—which suggests that it would be a good idea that both Houses of Parliament should have a chance to have a serious discussion about the fiscal framework.

As a Scotsman, I admit that I am torn. When Mr Hogg passed the ball successfully in the last minute against the Italians and the Scots finally won a game, I was very pleased. It looks as if Mr Swinney is the Hogg of this particular match. There are consequences for the United Kingdom, for Northern Ireland, for Wales and for the north of England, so the UK Parliament should address the fiscal framework before the Scotland Bill goes on to the statute book. If the noble Lord, Lord Forsyth, were to press Amendment 68, I would be inclined to go with it.

--- Later in debate ---

[Lord Kerr of Kinlochard]

I welcome Amendment 56K, which covers borrowing, on which I have tabled Amendment 57. I think that Amendment 56K is a great deal better than my amendment and I congratulate the Government on producing it. For me, it was important that we had on the statute book a clear indication that there would be additional borrowing powers—that seems to be a necessary concomitant of tax devolution—that all borrowing would be in accordance with Treasury rules and that it would be subject to ceilings. All three elements are well met in the Government’s amendment.

It seems clear that the UK will be standing behind borrowing in the markets by the Scottish Government—that is, borrowing in line with the statutory requirements of being within the limits and in accordance with the Treasury rules. That has to be clear, otherwise borrowing in the markets will be more expensive for the Scottish Government and therefore for all of us, since it will be part of the UK borrowing programme. I would be grateful if the noble Lord could confirm that my reading of that is correct.

The borrowing section of the fiscal framework document all seems to make sense and the increased limits seem appropriate, except possibly the biggest single increase. There are two elements that cause me a little bit of concern and I would be grateful for the Minister’s views. One is the annual limit of £600 million for borrowing in response to a Scotland-specific economic shock. Paragraph 66 of the framework document says:

“A Scotland-specific economic shock is triggered when onshore Scottish GDP”—

I think that it means GDP growth—

“is below 1% in absolute terms on a rolling 4 quarter basis, and 1 percentage point below UK GDP growth over the same period”.

I pause on the word “onshore”. I am not quite clear when the added value of the North Sea comes into GDP. Is it when it comes onshore? Can the noble Lord elucidate? Would an oil price shock, such as the one that we have just seen, be regarded as a Scotland-specific shock? If not, I see a possibility of debate and dissent down the line.

Secondly, the document tells us that when a Scotland-specific shock is triggered, it may be triggered from outturn data or from forecasts. It says:

“In the event that forecast data shows an economic shock but outturn data does not, no retrospective revisions will be applied to borrowing powers”.

I agree with that sentence.

I slightly worry about this. It is odd to define a Scotland-specific shock by its effect on GDP rather than by its own characteristics. If you do that, given that GDP is always subject to revision for a number of years—a point made by the noble Lord, Lord Darling, in our Committee stage debate on borrowing—it seems that, again, you have the possibility of some debate. That is dealt with in a way by using a rolling four-quarter basis for calculating whether Scottish GDP is growing at less than 1% in absolute terms and 1% below UK GDP. Even so, is the Minister quite sure that the best way of defining a Scotland-specific shock is by its subsequent observed effect on GDP rather than by some intrinsic characteristic?

[The Earl of Kinnoull]

My Lords, I rise to speak to Amendment 57ZA, which is purely a probing amendment that would have appeared in Committee if we had had the fiscal framework. It is designed to allow a bit more discussion about one or two issues.

The borrowing framework within the fiscal framework will of course be precedential and will be a template, no doubt, for other deals with other devolved bits of the United Kingdom. I put it to the Minister that there are great prizes here to be had for clarity and for going into quite exhaustive detail in what can be a difficult area. I should say that before I drafted my wording, which is purely indicative, I had of course not read Amendments 56K and 56L. I echo the words of the noble Lord, Lord Kerr, in that regard. I had to read the fiscal framework on a mobile phone, which is not ideal, at Bristol airport.

I want to discuss two points, the first of which is, can we go into a bit more detail, and where is the extra detail contained? Is it in a memorandum of understanding; has it yet to be decided upon? Such details cannot be simply brushed aside; otherwise, you simply store up arguments and problems for later on.

One issue that occurs to me is how you tot up the level of outstandings. In the capital markets, it is quite normal that the issue price of something is quite different from the principal amount. For a zero-coupon bond, it will be a heck of a lot less. What would one record in those circumstances against the limits, and where is that recorded? I have referred to the multicurrency issue. There is some help on multicurrency review— I did not pick that up on my mobile phone in Bristol airport—but it would be helpful to understand what the deal is on multicurrencies.

I have to say that I found some things a bit confusing. This issue is not dealt with in my amendment, but I refer the Minister to paragraph 68 of the document, which states, rather teasingly:

“The Governments agreed that the Scottish Government should have the option of refinancing, on the same terms, any debt due to be repaid in a year of a Scotland-specific economic shock”.

It seems to me that refinancing should be on similar terms, having regard to whatever interest rates are. I would love to have some help there, because almost certainly, the terms would not be the same when it comes to refinancing.

Also, paragraph 70 states:

“On request from the Scottish Government, the resource borrowing limits may be temporarily increased”.

There is no real help on the quantum of such an increase, on what “temporarily” means, or on whether the UK Government have a veto over that. It would be very helpful if the Minister commented on those issues.

The big issue, for me, is whether or not the UK is guaranteeing Scottish debt. With a 300-plus year record of repaying every one of its obligations in full and on time, the UK, as a united kingdom, has a unique opportunity to access capital markets at very favourable rates. I do not think that that would apply to an independent Scotland—certainly not in the early years. I would have thought it would be very helpful to Scotland if there was an express guarantee of some sort from the UK; I expressed it in the American format of “full faith and credit”. That would help Scotland. It is a free gift of the UK, given that the rating agencies will count Scottish debt straight into their view of how much indebtedness we have. I would very much like to hear from the Minister on that issue.

Scotland Bill

Earl of Kinnoull Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, I will briefly speak to Amendments 41 and 42. I thank the noble Lord, Lord Faulkner of Worcester, for having tabled these amendments and for putting the case so eloquently. We had quite a wide-ranging discussion in Committee and I am very disappointed indeed that the Government have not come forward with proposals—a number of constructive options were suggested.

I have been trying to think of two words to explain the conduct of the Official Opposition over the Bill, and “kowtow” would sum it up. They are utterly terrified to say anything that could be interpreted in any way as not being in line with the Smith proposals or as doing anything that might upset the Scottish Government, which is very disappointing, particularly in the context of this issue.

As the noble Lord, Lord Faulkner, pointed out, the British Transport Police has for nearly two centuries served our country extremely well. It is a while since I was Secretary of State but I remember the important role it had in ensuring that we were able to cope not just with terrorism but with drug traffickers and other criminals who use the transport network. It is a highly specialised area and it is an act of utter vandalism to break up the British Transport Police in the way that is being proposed.

It is a particularly stupid of the Government to go along with the idea that the British Transport Police should be fragmented and the Scottish element of it included in Police Scotland which, I am sad to say, is in Scotland regarded as something of a joke and a disaster. Prior to the Scottish Government making the changes we had independent police forces operating extremely effectively throughout Scotland. The advocates of devolution decided to take power away from those police forces and centralise them into Police Scotland, and the results have been disastrous as regards communications and operational failures. I place responsibility for this not on the individual members of the police force but on the Scottish Government, who have created this chaos. Both the notion that we should break up the British Transport Police and hand it over to an organisation which has just sacked its chief constable and appointed a new one to sort out its problems, and the amendments which have been put forward by the Labour Party tonight which suggest that we set up a quango to help deal with the problems of implementation and administration, are just breathtaking in the scale of their irresponsibility.

We have no reason to interfere with the operations of the British Transport Police, so what offends the Scottish Government about it? The noble Lord, Lord Faulkner, put his finger on it: it could be the B word —the fact that it is called “British”—which offends. However, this is not a Scottish issue but a United Kingdom issue. It is about the security of the United Kingdom as a whole. I very much hope that the Minister will think again about the options which have been put forward in the amendments tabled by the noble Lord, Lord Faulkner, about how we can maintain a British force.

[The Earl of Kinnoull (CB)]

My Lords, the noble Lord is developing a very interesting point. I wonder whether, in doing so, he would like to refer to the no-detriment principle—principle number 5, of which I can hand him a copy now—and whether or not this offends that principle of the white sacred document, the Smith commission report.

[Lord Forsyth of Drumlean]

Indeed, I am familiar with the no-detriment principle, which is that policy changes on either side of the border should not have a negative impact on either country, and this is a classic example. So it is actually against the Smith commission proposals and, as the noble Lord, Lord Faulkner, pointed out, it is perfectly possible to maintain the integrity of the British Transport Police and meet the requirements of the Smith commission.

Can this be the same Government who are busy arguing that it is necessary for us to maintain our relationship with the European Union in order to maintain our security because of the importance of being able to share cross-border information et cetera? That same Government are now arguing and supporting a proposal that we should break up within our country a police force that operates cross-border. What is going to happen when the train gets to the border? Do the British Transport Police get off the train and somebody from Police Scotland gets on the train? How are they going to share information? What will the cost of all this be?

We have already had a glimpse of what might be in the fiscal framework: £200 million will be given to the Scottish Government to administer the welfare proposals that are being administered in large part in Scotland at present. That is money that would have been far better spent on welfare and not on bureaucracy. And here we are again. I always use the old cliche, “If it’s not broken, don’t fix it”. This is an organisation that has, as far as I am aware, served the public on the Glasgow Subway and throughout the rail network system. It is a specialist area, with the force operating on trains in dangerous circumstances using an experienced cohort with an esprit de corps. No one I have seen in the British Transport Police or among anyone with experience in this area supports what is being put forward. It is being put forward in order to kowtow to this obsession with trying to put a kilt on everything. It seems to me that the Government would do well to consider the amendments that have been put forward by the noble Lord, Lord Faulkner, think again and come back at Third Reading with something that looks to protect the interests and security of the people on both sides of the border.

I listened to the noble Lord, Lord McAvoy. He said that, basically, this is all very difficult and, although we would like to do something, we cannot offend against the principles of the Scottish Government being able to decide these matters. I say to my noble friend the Minister in all seriousness: if there is an incident as a result of this change which would not have occurred otherwise, Ministers will find themselves suffering extreme criticism, and deservedly so. I hope that my noble friend will think again on this and come back with an amendment at a later stage that preserves the integrity of this important force.

--- Later in debate ---

[The Earl of Kinnoull]

My Lords, I am grateful to the noble Lords, Lord Faulkner and Lord Empey, for speaking to these amendments—which, as I said in Committee, are most important. I am also grateful to the Minister for organising the drop-in yesterday. I regret that I turned up 27 minutes late, as I was detained on other business of the House, so I was only able to get a debrief—a very interesting debrief—from the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Empey.

I approach this matter from the point of view of the citizen, as I have done before. I think that the citizen is interested in security. They are interested in not having their daughter thumped on a train, and in drug smugglers not getting through. They are interested in terrorists being arrested. Our two holy documents—the white Smith agreement and the green Bill—as ever, need to be a good guide. This is another instance where they are in conflict. The noble Lord, Lord Forsyth, has been eloquently telling us about the no-detriment principle now for three months. I know that he knows it, but I thought that it should be read out. The agreement should,

“not cause detriment to the UK as a whole nor to any of its constituent parts”.

That is one of the core principles of the negotiations. Coming as it does at the start of the Smith commission report means that it has extra power. It is even more powerful than the many paragraphs that follow. Of course, paragraph 67 says very curtly:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

Those two paragraphs—I stress again the no-detriment principle, which has been so much the core of what we have been talking about for three months—are at odds with what is in the sacred green document, and that needs to be resolved. It is something this House needs to work hard to resolve. It is not resolved at the moment. I certainly agree that it needs to be resolved for Third Reading.

To repeat what I said in Committee, I note that the British Transport Police has separate duties, separate skills, separate powers and separate staff, who are trained and motivated differently. They have different skills and lives. It has a totally different structure. Its IT systems are completely different and plugged into some of the most sensitive IT systems in the United Kingdom—to which the standard Police Scotland constable does not have access. In short, they are an elite. They are after passenger safety and suppressing terrorism, and they get a seven-figure sum every year just for dealing with their part of combating terrorism.

Police Scotland, as the noble Lord, Lord Forsyth, so eloquently said, is a very troubled organisation. I have had just two Police Scotland officers in my home in the past six months—one from Dundee and the other from Perth. The particular matters that they came to talk to me about took 30 seconds, but I spent probably an hour with them listening to the awful difficulties they are dealing with as morale has collapsed and management appears to be on the floor. To be transferring into chaos at this time of terror alert—let us remind ourselves how big the terror alert is—one of the functions that is trying to keep us safe is pretty irresponsible. The Scottish Government might be nationalists, but they are a pretty responsible bunch of people. Neither they nor the UK Government should really be contemplating that. Of course, with all the differences in staff, training and IT duties, it would be very difficult.

I would very much like to hear from the Minister why the no-detriment principle is not the trump card, and why the collection of very well thought through and interesting amendments that make up this group could not be put in place. They would be consistent with the Smith commission agreement; they would certainly be consistent with the no-detriment principle. The core, surely, of both the UK Government and the Scottish Government is the security and safety of the citizen with whom I started this short speech. There is an overwhelming case for the Government introducing something at Third Reading, and I look forward to hearing a little about what that might be.

[Lord Wallace of Tankerness]

My Lords, paragraph 67 of the Smith commission report states:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

That is a simple and straightforward sentence, but what lies behind it is actually very profound. My concern is that what is being proposed by the Government does not safeguard the functions of the British Transport Police if they are devolved. I respect and generally support the way it is being done in terms of exceptions to the general reservation under Part 2 of Schedule 5 to the Scotland Act 1998, but what we have heard is that the Scottish Government intend to put the British Transport Police under the ambit of Police Scotland.

I will not go into the woes of Police Scotland with the noble Lord, Lord Forsyth, and the noble Earl, Lord Kinnoull, who have both mentioned them, but even at its best one can readily imagine that once the BTP comes under the auspices of Police Scotland, if you are the chief constable and you have problems and challenges with regard to resources, you might well think, “Well, why do we have a specific police presence in Waverley station? Surely it can be covered by the police we have got who would otherwise be monitoring Princes Street?”. It would not be proper for politicians to interfere in the operational decisions of the chief constable. For operational reasons the functions of the British Transport Police under a different guise could be whittled away bit by bit.

[Lord Wallace of Tankerness]

The noble Lord is absolutely right, and we aired these concerns when this was debated in Committee.

It is interesting to note in the submission made by the British Transport Police Federation to the Scottish Parliament Devolution (Further Powers) Committee that:

“In 2001, the government response to the DfT consultation which led to the BTPA’s creation … stated that: ‘The Government therefore considers that the national railway network is best protected by a unified police force providing a dedicated, specialist service and able to give proper priority to the policing of the railways’”.

The memorandum to the committee of the Scottish Parliament goes on to quote the Transport Select Committee of the other place in 2004, which,

“looked at the reforms to the BTP’s governance arrangements … It concluded that: ‘The British Transport Police is not a Home Office Force, and nothing we have heard suggests that it should become one. The railways are a specialised environment, with specialised needs, and need a specialised Force’. They continued: ‘The steady reduction of resources allocated to traffic policing leads us to agree with Her Majesty’s Inspectorate of Constabulary that unless there is a national force dedicated to policing the rail network, the task will not be given the priority it needs’”.

Our concern is that if, having devolved and lost control of this area and the Scottish Government exercise the devolved powers that they have to bring it under the direction of Police Scotland, the very concerns that were expressed by the BTPF and others will be borne out. The specialist services which the British Transport Police currently deliver could be lost over time, and therefore what the Smith commission argues is that the functions possibly could no longer be exercised.

Noble Lords have referred to a number of those functions, in particular tackling terrorism on our transport network. One I particularly note is that:

“The British Transport Police has created specialist teams with responsibility for the management of multi-agency support for local and national suicide prevention, mental health interventions and vulnerable persons encounters. An ongoing force-wide operation (Operation Avert) has so far achieved a 30% reduction in suicide attempts compared to the same period the year before”.

These are very profound specialist functions that the British Transport Police provide.

[The Earl of Kinnoull]

I think that we would all be very interested to hear the view of the noble and learned Lord on the quote that I read out about the no-detriment principle.

[Lord Wallace of Tankerness]

My Lords, one of the problems is that the no-detriment principle has so far tended to be looked at primarily in financial terms, but I think that the noble Earl is right that there are other detriments of a qualitative nature which he pointed out to the Minister. We could lose something of value. That would be to the detriment not just of Scotland, but of the whole country.

I share the views of other noble Lords that it is disappointing, despite the many concerns expressed in Committee, that the Government have not come forward with an amendment that would seek to address this. We owe a debt to the noble Lords, Lord Faulkner of Worcester, Lord Empey and Lord Forsyth of Drumlean, and to the noble Earl, Lord Kinnoull, who have sought to try to meet the Smith commission’s recommendation while ensuring that the specific functions of the British Transport Police are preserved.

I have some reservations about Amendment 41, which would be inserted at the end of Clause 42. Clause 42 fits the Smith commission’s arguments—it does devolve, in as much as it makes an exception—but my concern about Amendment 41 is that, having devolved, it seems to take back and would make it a requirement to have an agreement between the British Transport Police Authority and the Scottish Government. I prefer Amendment 42, which at least says that, if there is to be a police services agreement that applies in Scotland, Scottish Ministers should be involved, and that the oversight arrangements that the noble Lord, Lord Empey, spoke to—he indicated that they were over and above what was proposed—are consistent with the spirit and the letter of the Smith commission proposals, while trying to ensure that this is a practical way to address them.

I hope that when the Minister responds to the debate he will take on board that there are genuine concerns that a simple further exception to the reservations in Schedule 5 will not necessarily guarantee that the functions of the British Transport Police would be safeguarded after the devolution proposals put forward there. I therefore hope that the Minister, even at this late stage, will be prepared to come back and give some further thought as to how the functions can be properly safeguarded.

Scotland Bill

Earl of Kinnoull Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord Foulkes of Cumnock]

As the person who initially raised it, and as one of the usual troublemakers, I fully accept what the Chief Whip has said. That is what we all understood was to be the case. As long as the discussion on the fiscal framework and related matters can be, informally, treated as if it were Committee rather than Report, I am sure that that is the way forward.

[The Earl of Kinnoull (CB)]

That is very good news.

I thank the noble Earl, Lord Dundee, for allowing me to add my name behind his on the amendment. I must thank both Ministers for a very generous slice of their time when we discussed the thinking behind the amendment in their offices a week or so ago. The amendment concerns intergovernmental relationships, and I remind the House what the noble Lord, Lord Smith, wrote in his foreword:

“Both Governments need to work together to create a more productive, robust, visible and transparent relationship”.

I was very encouraged to hear, when the noble Lord, Lord Dunlop, repeated the Statement, that the noble Lord, Lord Smith, had again talked about how important intergovernmental relationships were. The noble Lord, Lord Dunlop, talked about there being a basis for constructive engagement and how he was keen on building intergovernmental relationships.

The amendment concerns what I would call, in commercial terms, a feedback loop. When we are building a heavily devolved United Kingdom, it is very important that there is a structured, formal feedback loop between the Westminster Parliament and each of the devolved Administrations. I had the benefit of a visit to Canada in November, when, by sheer chance, I was able to sit down with a friend of mine who is a well-respected and very senior constitutional lawyer there. We talked about how the feedback loop exists and has been working in Canada. He confirmed that the loop went up and down; it consisted of a frank and honest interaction, and he regarded it as being open and constructive. That is not to say that he thought it was a total panacea—he identified one or two areas where there were weaknesses—but he said that through the creation of that feedback loop, an enormous number of poisonous things had been drawn from the lion’s paw in Canada. The amendment should be seen as something that begins to create a feedback loop. After all, we have a lot of devolution to come in the United Kingdom, and we will have to create a standardised approach to the feedback loop. The clear drafting of the amendment, which has developed since Committee, could be a valuable tool to kick it off.

We will have to have a feedback loop sometime. I feel that it is entirely consistent with the Smith commission agreement to include in the Bill something which starts a successful feedback loop. It will be interesting to hear from the Minister, if not now, when we actually have a Scotland Bill before us, when we can begin to put in place a formal structure that will help relationships between the two Governments.

Finally, I observe that if we go without a feedback loop, eventually there will be some form of car crash. A great dispute will grow up which may not have arisen with the feedback loop, and we will then be trying to retrofit such arrangements.

[The Earl of Lindsay (Con)]

My Lords, I support the amendment in the names of my noble friend the Earl of Dundee and the noble Earl, Lord Kinnoull. I remind the House that, quite apart from what the noble Lord, Lord Smith, said when reporting on his commission’s work, the Government, in their reply to the Smith commission, also accepted the call for greater co-operation and respect. They said:

“Effective inter-governmental working is essential to guarantee the best possible provision of services and representation for the people of the UK; a renewed commitment to build these relationships and explore better ways of working, as recommended by the Smith Commission Agreement, will require close collaboration between the UK Government and Devolved Administrations”.

The noble Lord, Lord Smith, and his commission, were absolutely right in endorsing that strong, unambiguous message.

It is perhaps a source of regret that in 2013, the recommendations of the Calman commission, which reported in 2009 in this very important area of intergovernmental co-operation, have to a large extent been either ignored or progressed in a way that has not been wholly effective. The noble and learned Lord, Lord Wallace of Tankerness, and I, as members of the Calman commission, were largely responsible for what became the largest section of the report, with 23 recommendations that dealt with intergovernmental co-operation, interparliamentary co-operation and inter-institutional co-operation. We on the Calman commission were very clear that this was a very important ingredient of achieving a stable, devolved constitution.

In coming to those 23 recommendations in 2009, we were acting on the evidence that we had heard from countries such as Canada, Australia, Germany and Spain—from memory—where the message was very clear. That was that the mortar between the bricks that delivered a stable and resilient devolved constitution came from relationships, not just primary legislation that determined which powers were devolved and which were reserved.

I encourage the Government, who have had both the Calman and the Smith commission recommendations, and now have this worthy amendment in the name of the noble Earls, Lord Dundee and Lord Kinnoull, to take seriously the message that it contains.

--- Later in debate ---

[Lord MacKenzie of Culkein (Lab)]

My Lords, I support much, though not all, of what the noble and learned Lord, Lord Wallace of Tankerness, has said. My only slight worry is the issue of double devolution and whether the amendment is competent, but that is not to say that the debate is unimportant. We in the Highlands are sick of the centralisation that has been happening in Scotland—I certainly am.

To allow the management of the Crown Estate to be taken over by the northern islands councils and the Western Isles Council would be a good step forward, because migration has always been a particular problem in the northern and Western Isles.

I recently visited the Isle of Lewis and the school I used to go to as a child when my father was principal lighthouse keeper in Lewis. It has closed, as have a number of other junior and secondary schools because of falling school populations. We need to bring some wealth back into that part of the world. There are always difficulties about the yard at Arnish, which was involved and perhaps still may be in manufacturing for wind farms. There has been a fall-away in fishing, which used to be the mainstay of that island, the potential, as we have heard, aquaculture and wind energy, and the difficulties with the interconnector to the Western Isles. Therefore we need something to bring some certainty to these islands. They are so much forgotten about in Edinburgh; historically, the highlands have always been the poor relation of Edinburgh, and many highlanders like me always tended to think that we did better out of Westminster than Edinburgh.

There is now a Government in Edinburgh who have the opportunity to devolve the management of the Crown Estate to the Northern and Western Isles. I am suspicious of the Scottish National Party’s plans here—I agree with the noble and learned Lord that there is no certainty whatever that anything other than the net proceeds will be given to these islands. I hope that this debate will at least help to put pressure on those who will have the ability in the future to further devolve, as the Smith commission said.

[The Earl of Kinnoull]

My Lords, I am very grateful to the noble and learned Lord, Lord Wallace of Tankerness, for allowing him to put my name beneath his on this very cleverly drafted and interesting amendment. As I mentioned in Committee, I have a particular interest in and a special love for those assets that make up the Crown Estate today. I am very worried about the Crown Estate, and feel that it needs to go into hands that will look after it. I am therefore extremely attracted by this amendment, because the local councils concerned will fulfil my test of looking after things.

I was most interested in what the noble and learned Lord, Lord Wallace, had to say about net income versus management. I thought I had to find one example of why it was important to send things down to the local level and I found one by talking to a householder outside Oban. He reflected that in the area outside Oban there are a number of fish farms, one of which had gone bust—of course, they need to have an arrangement with the Crown Estate—and no moneys were available to clear up the fish farm, which then created a pollution problem which affected a number of neighbouring fish farms. These businesses are quite small, but they employ significant percentages of people in the area around Oban. The solution was of course to get hold of the Crown Estate and ask it to take some simple decisions—essentially, to pay someone to clear up the mess. It took a very long time, because no one in London quite understood the urgency of the fact that pollution was killing off the fish. The householder told me that they were jolly glad that the Crown Estate would move to be more local. It was interesting that the same householder knew exactly what was taking place—I am using “double devolution” but I do not think it is that—and that in future, if a similar thing happened, it would be possible for someone to go directly to the appropriate person, because they would know the individual within the council who would look after it and could have the matter sorted out so that it would not cause the economic damage to the community which it did.

There is also of course the extraordinary thing we have been hearing today about the holy status of the Smith commission agreement document. However, in fact of course we have two holy documents, because it turns out that the Scotland Bill itself has a holy status. There is a conflict of holiness—

[A noble Lord]

Sacredness.

[The Earl of Kinnoull]

—or sacredness between these two documents, and it seems that it is incumbent on the House to try to find some way to resolve that. Given the very eloquent words of the noble and learned Lord, Lord Wallace of Tankerness, and my story of the householder from outside Oban, I am sure that the correct way for the House to consider the holiness is to go with the Smith commission agreement and to make the amendment that is being proposed here. I hope that other noble Lords feel the same way that I do.

Scotland Bill

Earl of Kinnoull Excerpts

Monday 22nd February 2016 Lords Chamber

[Lord Hughes of Woodside (Lab)]

My Lords, I hesitate to enter this debate, especially as it has been going on for a long time and I have always opposed Scottish devolution. I accept what has happened, that changes have to be made and that we have to move forward. However, the noble Lord, Lord Forsyth, makes an interesting point and if he forces a Division, I shall certainly support him in the Lobby.

As this debate has proceeded today, I have become more and more alarmed. We must choose our words very carefully. When my noble friend Lord McAvoy says that the Bill must go through, that is not the same as saying that, “This Bill must proceed”. We need an absolute guarantee that the Bill will not reach the statute book until the fiscal agreement has been reached; otherwise it will face opposition at every stage. Anyone who raises a question is accused of deliberately trying to stop the Bill going through and to stop the Scottish people getting their own way. Nothing could be further from the truth. We want to see a lasting settlement that will avoid the procedure whereby it seems that, almost every five minutes, the Scottish National Party demands greater concessions which it is given and which it accepts and hails as a great victory. The next day it says, “We have been sold down the river again”. If the debate on the future of Scotland is to be proceeded with solely on the basis of the attitude that the Scottish National Party takes, we are doomed to disaster.

This House and this Parliament have a responsibility, and we should proceed on that basis. When the Minister gets to his feet, he should at least give a categorical assurance that, if we reach Report and still do not have a fiscal agreement, that Report stage will not proceed until the agreement is reached. If he cannot go that far, he should at least go so far as to say that the Bill will not go on the statute book until that agreement is reached and agreed by Parliament.

[The Earl of Kinnoull (CB)]

My Lords, I thank the noble Lord, Lord Forsyth, for enabling us to have this debate on the sorry state of the timetabling for this important constitutional matter. I want to make just three points.

The first concerns precedent. The Bill is the first of a series of devolutions in the UK and obviously precedential in its financial settlement. It is also precedential in terms of all the Bill’s contents. I hope that the one thing where it is not precedential is in the extraordinary process which has led to us being in this debate today. Your Lordships’ House is justly proud of its ability to scrutinise legislation, to bring to bear its considerable powers of analysis to improve that legislation and to test the thinking behind every provision within it. That scrutiny process is multi-layered and the Committee stage is an extremely important layer of it, and I would strongly resist the giving-up of it. The scrutiny process has been honed, through centuries, to the effective peak that there is today.

We aim to produce legislation that will stand the test of time. This Bill is likely to last a very long time, so we need to proceed carefully. I hope that the House will agree with me that, in a constitutional matter such as this, it is especially important that the full spectrum of the House’s abilities are employed, given that it is a new settlement within the United Kingdom and will definitely be precedential on the other devolution settlements under consideration.

Scotland Bill

Earl of Kinnoull Excerpts

Monday 22nd February 2016 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I feel obliged to intervene for Wales for a moment, because there is a very solid Welsh dimension in this. I also feel that I can do so because I was married for 39 years to a lass from West Lothian and I have always known the answer to the question—which is, “Yes, of course, dear”. The point that really concerns me is that a deal is being done in secret in Scotland, involving the fiscal framework, which will have implications in Wales. As the noble Lord, Lord Forsyth, said, the Welsh deal on the Barnett formula is rubbish. Every political party in Wales recognises that. The Welsh Labour Government refuse to exercise their tax-raising powers until that formula, or some formula, is revised. I fear that this secret formula or framework that is being arrived at in Scotland will be used as a precedent in Wales when we come to deal with tax-raising powers under the draft Wales Bill, and that we will be stuck with the same sort of system, arrangements and mechanisms as there are in Scotland—but it will be entirely different.

Therefore, I urge Ministers, as my noble friends have done, to allow transparency, so that we may actually have some input. Many speakers in this debate have said that it is unfair on other parts of the United Kingdom. Certainly, it may very well be unfair on Wales: the impact of this fiscal framework in Scotland could devastate Welsh funding for the future. I hope that your Lordships will excuse me for putting in a Welsh voice.

[The Earl of Kinnoull (CB)]

My Lords, I support Amendments 76 and 79G. Like many other noble Lords, I have found much that is attractive in many amendments in this debate, but I am confining my remarks to those two. I note that all the amendments and speeches have been wholly consistent with the Smith commission report.

I support Amendment 76 totally, of course, but I fear that it is something that is needed more than once; in fact, I would repeat it every five years. I see it as part of what, in commercial terms, one would call a feedback loop, which I think one needs to set up for every single devolved Administration. It could be well-structured and formal and allow for a frank examination of every aspect of devolution between Westminster and those devolved Administrations. If we do not set up a feedback loop now, as sure as eggs are eggs, when things go wrong we will set one up in the future. I feel strongly, and I think this will come back in further debates, that a feedback loop is required.

Secondly, I was much attracted by the thinking behind Amendment 79G. However, I would not in fact set up a Scottish fiscal commission; rather, I would expand the OBR to include this. As we expand the number of devolved deals, the problem is that we could potentially end up with a massive number of these commissions, all of which would essentially be umpires and all of which, one assumes, would umpire according to slightly different rules. There would be a great advantage to having one umpire in the UK—it has been pleasing to read today in the press how the OBR has resisted political interference in the recent past—which used one set of rules to examine figures and to report generally to the United Kingdom.

--- Later in debate ---

The serious point—not that I am saying that the points made by the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Forsyth, are not serious—is that these are quite important constitutional issues. I hope that in replying to the debate the Minister will indicate that the Government are willing to look at this again, because these powers go far beyond what is reasonable.

[The Earl of Kinnoull (CB)]

I support the amendment tabled by the noble and learned Lord, Lord Hope of Craighead. I said near the start of the debate that I felt that, of all the stuff we have had in Committee over the past few days, this clause was the one thing that was inconsistent with the Smith commission agreement. I shall explain a bit more of my thinking behind that.

I have my dog-eared copy of the Smith commission report here, and in the foreword there is a paragraph headed “A more autonomous Parliament”, which starts:

“The Scottish Parliament will be made permanent … and given powers over how it is elected and run”.

In paragraph 26, entitled “Powers over the operation of the Scottish Parliament and the Scottish Administration”, we read that:

“UK legislation will give the Scottish Parliament powers to make decisions about all matters relating to the arrangements and operations of the Scottish Parliament and Scottish Government, including”,

and then follows a list of the things that are included.

It seems to me that those words—and I am sure that we could trawl through the Smith commission report and find others—at least raise a reasonable doubt about whether the provisions are consistent with the Smith agreement. I would certainly feel, on balance, that they were not. There are few fans of Henry VIII clauses in this House, and I can see no reason why these powers are needed, or indeed—because of my point about the Smith commission—why they should be there.

--- Later in debate ---

Moved by

[The Earl of Kinnoull]

80: Clause 69, page 75, line 17, leave out subsections (1) and (2) and insert—
“(1) Sections 13 to 68 of this Act shall not come into force until such time as the relevant Secretary of State has laid before Parliament a statement to the effect that the Secretary of State is satisfied that the Scottish Government and any Scottish authorities to which power is devolved under this Act have the appropriate arrangements in place with which to exercise the relevant powers devolved under this Act.
(1A) Each section or subsection to which subsection (1) applies may be the subject of a statement under subsection (1), which once laid before Parliament would cause that section or subsection to come into force.
(1B) The provisions in subsections (3) to (7) are subject to the provision in subsection (1).
(2) Sections 1, 69 and 70 come into force on the day on which this Act is passed.”

[The Earl of Kinnoull]

My Lords, in moving Amendment 80, I wish to speak also to Amendment 81.

Amendment 80 is intended to do something very simple. The language is illustrative only. The concept is that a power to be transferred under the Bill would be so transferred only once the Secretary of State was satisfied that arrangements were in place for the transferred power to be successfully and smoothly operated in Scotland; and that, by implication, matters in the rest of the UK would continue at least as successfully and smoothly as before that transfer. This is fully consistent with the Smith commission agreement and would, of course, remove all temptation to go for a rushed and bodged job—a temptation that has so often been succumbed to in the process that has led us here today. It is quite simply a small source of comfort and protection for the ordinary citizens of Scotland and the rest of the UK who would be the innocent victims of such a rushed and bodged job. It is worth noting that I was anticipating that a similar discipline would be observed in Holyrood.

As I said in an earlier debate in Committee, the origin of this thinking came from a conversation that I had with an SNP MP, who said that he had anticipated teething troubles where the British Transport Police were concerned. Here, I assume that “teething troubles” means young women being thumped, drug smuggling having an easier ride and terrorists getting through. I dare say that the Minister will suggest that the amendment is not needed because responsible Ministers would act in such a manner anyway. However, I put it to the Committee that in the politically charged atmosphere that is the genesis and continuing history of this Bill, we have seen time and again actions taking place that would not occur under the simple discipline proposed in Amendment 80, and when taking into account the ordinary citizen’s point of view rather than the political one.

I further add that, as we move into a more devolved United Kingdom, with further devolution deals affecting other parts of the UK, this would be a help as a general principle. It would ensure that the risk of teething troubles is greatly reduced. It would mean that devolution is considered from the point of view of the ordinary citizen, not the politician.

Amendment 81 was debated at an earlier stage, and I know that the Crown Estate will come up again on Report, but would the Minister care to comment on whether the SNP has had put to it the various Crown Estate ideas which have been debated in this House? If so, what did it have to say about them? I beg to move.

--- Later in debate ---

[Lord Dunlop]

I am very happy to write to the noble Baroness on that point.

[The Earl of Kinnoull]

I thank the Minister for what he said. I was rather ungracious earlier on: he spent a lot of time with me on this issue, and has gone a long way to giving lots of assurances about my essential concern, which is the private citizen as opposed to political expediency. I am grateful to him and I note that he has organised a drop-in on the issue of the British Transport Police tomorrow afternoon; I shall be dropping in for sure. That said, and putting down a marker that I feel that the interests of the private citizen as opposed to political expediency is something that this House should have regard to, I beg leave to withdraw the amendment.

Amendment 80 withdrawn.

Scotland Bill

Earl of Kinnoull Excerpts

Tuesday 19th January 2016 Lords Chamber

[Lord Gordon of Strathblane (Lab)]

My Lords, I shall intervene briefly on two points. First, as regards the discussion about “may” and “must”, while I concede that “may” sounds too permissive and does not adequately reflect Smith, it could be argued that “must” sounds as if one needs to coerce an unwilling UK Government. Surely, the word “shall” would be the obvious alternative.

Secondly, as regards the point made by the noble and learned Lord, Lord Wallace, while I agree entirely that the island authorities are wholly competent to manage the Crown Estates, and I hope they will be allowed to do so, the agency for handing over the power must be the Scottish Parliament. For this Parliament to insist in advance that it goes is not devolution, it is compulsion.

[The Earl of Kinnoull (CB)]

My Lords, I shall speak to Amendments 45 and 47. First, I thank the Minister and his officials for the generous amounts of time they have given to date to discussing these matters. These amendments arise from my concern that the Bill is not consistent with the Smith commission agreement and would make Crown Estate assets politically available ones, rather than things held independently for the people of the nation. The wording of the amendments is illustrative only.

As has been observed, the Crown Estate’s core constitutional document is the Crown Estate Act 1961. That document, however, is a cold discussion of constitution and functions and does not address how the Crown Estate works in practice, especially how it works together with Ministers. That is in the HM Treasury and Crown Estate framework document, which is publicly available on the website. That document, which is a model of clarity, makes it abundantly plain that the Crown Estate assets are to be managed on an arm’s length basis. Paragraph 3 states that,

“it is not an instrument of government policy, it is a public body”.

The values of the Crown Estate are clearly set out and include stewardship. The document states:

“Stewardship is deeply engrained in our culture; because of our history and because of our heritage, we act at all times as good stewards of the properties we manage. We strive for the best standards of management: in our parkland and gardens; in our farmland and our forestry; in the marine environment; and in our buildings and streetscapes. So our commercial approach is supported by a clear recognition of our stewardship responsibilities”.

Nothing in the Smith commission agreement suggests in any way that any party to that agreement sought to change the arm’s-length basis that the Crown Estate operates under, or the values by which the assets are managed, including that of stewardship.

I turn to the phrases in the Smith commission agreement, especially paragraph 32, which the noble and learned Lord, Lord McCluskey, just read from. In this, I detect not one iota of any agreement that seeks to change what I just said about the arm’s-length nature of the relationship between the Government and the Scottish Crown Estate. I ask the Minister my first question: does he agree with my assertion?

Secondly, the commission agreement is in respect only of the economic assets of the Crown Estate, which presumably is not all the assets. Will the Minister explain why the Bill currently refers to all the assets, as the noble and learned Lord, Lord McCluskey, said? If this is a change to the Smith commission agreement based on sound reasoning, then would the Minister agree that this type of logic might apply in other situations?

Thirdly, the agreement sees the transfer of management to the Scottish Parliament, as has just been discussed, but if the Minister argues that such transfer is not possible, as I suspect he will, then would he agree that it would be much more in keeping with the Smith commission agreement to maintain the arm’s-length relationship between the Government and the Scottish Crown Estate, using language similar to what I have proposed?

My amendments do not address onward devolution. I am very much in favour of this and I found the speech of the noble and learned Lord, Lord Wallace of Tankerness, compelling. My rather less compelling thought had been that the new Scottish Crown Estate commissioners should make suitable provision for this, in line with the Smith commission agreement and, indeed, with Richard Lochhead’s own words in his document, Administration of the Crown Estate in Scotland—Case for Change, at paragraph 21:

“In particular, there is widespread support in Scotland for an approach to land management which seeks to support communities—particularly in rural and isolated areas—taking responsibility for their own futures”.

I can only think that he and the SNP would therefore not object to onward devolution being in the Bill.

I do not believe that my amendments are in any way inconsistent with the Smith commission agreement; the Bill’s clauses as currently cast are. I would transfer the management of the Scottish Crown Estate assets to a similarly run independent body, so that these important things cannot be used for political purposes, and so that their stewardship continues to be managed on a long-term basis for the people of Scotland.

[Lord Sanderson of Bowden (Con)]

My Lords, I support the thrust of the amendments from the noble Earl, Lord Kinnoull. The Crown Estate is an independent, commercial business. It is extremely well run and, of course, it pays its profits to the Treasury. It is a great shame that we do not have anyone from the Scottish National Party in the Chamber so that we can hear what they have to say about this future arrangement. It would be much better if they were here, but we have to imagine how they will view this whole operation. In supporting the noble Earl, Lord Kinnoull, I hope that they realise that it is not really an arm of government that we want to see in Scotland, but a separate board reporting to the Government and to the Scottish Parliament as to how they are getting on. In supporting the noble and learned Lord, Lord Wallace, I hope that that particular board would have a highland spring in its step.

I turn to the amendment from the noble and learned Lord, Lord Wallace. Having been a Minister for the Highlands, I know only too well that the relationship between the Crown Estate and the Highland councils was not always a smooth-running affair. Of that I am quite certain. However, I strongly support what the noble and learned Lord said about the future arrangements now that we are to have a transfer of functions in relation to the Scottish Crown Estate. I hope that this will be borne in mind by the Scottish Government when they determine how they will run this whole affair. As the noble Lord, Lord Gordon, said, no doubt there has to be a central board, but the people in the islands should also be included in the arrangements going forward. Dare I say that the Glenlivet estate, in the Moray district—which was in the hands of the Forestry Commission but is now very much better run, if I may say so, by the Crown Estate—should also be included in the arrangements going forward?

I have one other thing to say, which has a bearing on what has already been said by the noble and learned Lord, Lord Davidson. Fort Kinnaird, on the edge of Edinburgh, is, in fact, a shopping centre. I will be interested to hear what the Minister has to say about this because Fort Kinnaird is in a different position from that of all the other interests that the Crown Estate has in Scotland, because it is part of a joint fund with other sovereign funds which own that property and properties south of the border as well. The arrangements that the Crown Estate arrives at with its partners in many places, particularly in Regent Street—it owns just about the whole of Regent Street—are built on trust between the various parties to those funds. I hope that the whole question of Fort Kinnaird and its works is left well out of the arrangements for the transfer to Scotland of the Crown Estate, so that it can continue with its present arrangements under the fund, because that is going well and I see no reason at all why that part of the operation should be devolved.

--- Later in debate ---

[The Earl of Kinnoull]

I wonder if the noble Lord can advise the House what the Gaelic for “Cumnock” is.

[Lord Foulkes of Cumnock]

That would take some time. I am not a Gaelic speaker. I can speak in Doric if required. I remember my granny used to call me a “daft loon”.

--- Later in debate ---

[Lord Faulkner of Worcester]

That is very kind of my noble friend, but I do not think it matters who claims credit for what. What matters is that the outcome of those deliberations was an improvement in the situation in which the British Transport Police played a crucial role. I find it utterly inexplicable that these two clauses are in the Bill. I am sure that in due course they will give the Scottish Parliament with a nationalist majority the opportunity, effectively, to nationalise the BTP in Scotland. It would be a terrible mistake, and I hope the Minister will agree to come back on Report and have these clauses removed from the Bill.

[The Earl of Kinnoull]

My Lords, my interest in this was sparked by a conversation with an SNP MP in December in a passageway in the other place. I asked him whether he thought Police Scotland was ready for the British Transport Police, to which he answered that he was sure there would be some teething problems. I find that very worrying because teething problems essentially mean damage to the citizens of the UK, either because some young lady has been thumped or because drug smugglers or terrorists have got through.

In my commercial career, I spent more than 10 years as the director of mergers and acquisitions for a FTSE 250 company. Over Christmas, I thought about how complicated the demerger of the British Transport Police would be. I will not bore the Committee with a lot of what I thought, but I have done demergers as well as acquisitions, so I know. There would be TUPE, which would be horrible because there will be only one human resources department and one accounting department. There would be career progression problems for the existing staff because there would be a disproportionate number of chief superintendents one side of the border or the other. There would be only one training establishment for each type of training and there would be difficulties with that.

In particular, there is the thing that has caused me problems professionally throughout my career, which is everything to do with data. There would be an enormous discussion about who owns what data. Eventually there would be a decision on that, and then there would be enormous problems over the sharing of those data. Those problems would partially have been inserted by Parliament. All that would lead to an immense decrease in the effectiveness of the force. You would end up with two human resources departments, two IT departments and two sets of expensive management sitting on the top. You would not only have an enormous one-time cost, there would be continuing enormous additional costs and a decrease in effectiveness. That is a jolly bad result for citizens of the UK north and south of the border.

This is an area where the parties who turned up to the Smith discussions probably forgot that, although they were empowered to talk about things going to Scotland, they were not empowered to think about things that would potentially damage English members of our union.

[Lord Forsyth of Drumlean]

Is there not another complication: the fact that the financing comes from the operators? Who pays what would be an interesting discussion. The noble and learned Lord, Lord Wallace, made a point about how one would ring-fence the funds. That would be a good discussion.

[The Earl of Kinnoull]

It would be interesting and very lengthy. I thank the noble Lord for yet another item in the list. I am sure that if one sat down one could prepare a demerger list of horrible problems that would tax people for a very long time.

Earlier, we spoke about the Crown Estate and the fact that it appears that where the Smith agreement has got it wrong there is some wriggle room for making some small changes in the Bill. We came across a couple of them in the transposition from the Smith agreement to the provisions of the Bill that deal with the Crown Estate. I suggest to the Minister that this is another area where there could be some wriggle room. Alternatively, we could go for some sort of fudge with a dual reporting line so there would be a unitary, single British Transport Police with agreed rights of reporting, scrutiny et cetera that went to Scottish Ministers in respect of Scottish staff as well as to UK Ministers at the same time.

[Lord Empey]

That was how our problem with the National Crime Agency was resolved: through reporting mechanisms. Our policing board would receive reports from the chief officers of the National Crime Agency. That is precisely the mechanism that was used, and that eventually got the consensus.

[The Earl of Kinnoull]

I am very grateful for that as well. In my commercial career, that option has sorted out a number other problems and is a very useful technique. I would be very interested to hear the Minister’s views on what I have just said and on everything that everyone has said in what has been a very interesting debate on this vital area.

[Lord McAvoy (Lab)]

My Lords, I apologise to the Committee for not being able to be here for start of the proceedings. I was away officially on Whips’ business. I thank my noble and learned friend Lord Davidson of Glen Clova for holding the fort so well.

The Bill makes the functions of the British Transport Police a devolved matter. I associate myself with all the praise expressed for the British Transport Police and its record since 1825. I have no hesitation in doing so.

I have only one comment to make about the contribution by the noble Lord, Lord Empey. I fully understand where he is coming from; he is ad-libbing about the language situation in Northern Ireland. The situation is a wee bit more hopeful than he has perhaps indicated: there are classes in Irish in solid unionist east Belfast, so there are glimmers of hope.

In the opening contribution from the noble and learned Lord, Lord Wallace of Tankerness, he regretted and bemoaned that the Labour Party did not do what he wanted it to do in the Scottish Parliament. I can understand that disappointment and possible resentment, because the Labour Party here had to stand back and watch for five years as the Liberal Democrats backed every vicious and vindictive proposal on welfare put forward by a Conservative Government, with never a word against.

Clause 43 devolves executive competence in relation to the policing of railways in Scotland by specifying as a cross-border authority the British Transport Police Authority, the chief constable of the British Transport Police, the deputy chief constable of the British Transport Police and the assistant chief constable of the British Transport Police. This is in keeping with the Smith agreement, which states:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

That was agreed. I understand also the suspicion and resentment that some Scottish National Party people seem unfortunately to be expressing the desire to get rid of the word “British”. I regret that. If that is their motivation, it does not say much for them, and we should concentrate on the core of the matter.

Designating the British transport bodies as cross-border public authorities means that appointments to the British Transport Police Authority or to the offices of chief constable, deputy chief constable or assistant chief constable will in future be able to be made only in consultation with Scottish Ministers. I know I should not have to say this but it should be on the record: devolution is devolution. You cannot agree the principle of devolution and then object to its effects. Devolution is devolution.

--- Later in debate ---

[Lord Dunlop]

I hesitate at this point in the evening to introduce the concept of no detriment, and I look forward to Committee day 3, when I am sure we will cover this in great detail. However, the UK Government absolutely have an interest in ensuring that whatever devolution takes place in this space does not cause detriment to the rest of the United Kingdom.

[The Earl of Kinnoull]

The noble Lord, Lord Empey, and I suggested that a solution to this could be a dual reporting structure. I would be happy to explain that afterwards, as I am sure the noble Lord would be. In view of the fact that three or four years of work is stretching before us, which sounds very expensive to me, it might be cheaper just to ask the opposite numbers at Holyrood at one of the forthcoming meetings in the next few weeks whether the pragmatic suggestion of going down the Empey/Kinnoull route might cut the mustard. If it does, it would be a heck of a lot cheaper and, I believe, much more effective. It is a free question. Will the Minister consider at least asking, to see whether they might accept this slightly different approach?

[Lord Dunlop]

I will certainly reflect on the points that have been raised in this passionate debate. No doubt we will return to this subject.

Scotland Bill

Earl of Kinnoull Excerpts

Tuesday 8th December 2015 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, I rise to make a few brief comments on a very thought-provoking summary from the noble Lord, Lord Foulkes of Cumnock. In my speech on Second Reading, I mentioned the issue of scrutiny, as it is a great concern to me. As I said, what concerns me is the very heavy constituency load that members of the existing Parliament have, which means that they simply do not have time to perform proper scrutiny of the legislation, of which there is an awful lot in the Scottish Parliament. I would further develop the argument to say that, if we are lumping a whole lot more powers into the Scottish Parliament, that problem is going to be exacerbated. Therefore, the quality of legislation—and I speak as a resident of Scotland—will inevitably go down.

I make a further point on the skill set required for scrutiny. I had the great benefit of watching the noble and learned Lord, Lord Hope of Craighead, prepare for today by just by chance being in and out of his office a few times. The care and precision with which he prepared today and the great scholarship that he has—reflected also by the noble Lord, Lord Norton—do not necessarily exist in the constituency MPs in the current Holyrood Parliament, but they are very necessary for the proper scrutiny of legislation, as we are doing today.

There is also an old adage about absolute power. It disappoints me that the Scottish Parliament has an absolute power today and is in many ways a more powerful Parliament and executive than this Parliament, where at least the mirror can be held up, and the Lords can say no—as they have several times already—which makes the Government reconsider things, which drives change for the better.

I want to address cost and perhaps answer the question posed by the noble Lord, Lord Forsyth of Drumlean. If it costs £200,000 per member, it would be £9.2 million; if it cost £400,000 per member, depending on what sort of Parliament you had, it would be double that, at just under £20 million. I think that the cost is likely to be in that area, but it would be small compared to the loss of things such as foreign direct investment or the economic damage inflicted by badly drafted and badly thought-through legislation. However, I have one concern: I am not sure that this Bill is the proper place for this set of thoughts, but it is certainly a very valid set of thoughts, and I thank the noble Lord, Lord Foulkes, for raising them.

[Lord Lyell (Con)]

I am fascinated by the marvellous remarks of the noble Lord, Lord Foulkes. I was interested that he mentioned one of my great passions, which has occupied a good bit of the Scottish Parliament and is about sectarianism at the football. Indeed, a leading sheriff in Dundee pointed out that he regarded the legislation as “mince”—I hope that is not an abusive term. It came down to the fact of lip-reading whether a supporter was singing the correct words of “The sash my father wore” or other terms which might be abusive. Leaving that aside, I commend the noble Lord, Lord Foulkes, for trying to get a revising chamber for the Scottish Parliament.

The noble Lord, Lord Foulkes, was kind enough to refer to the superb Second Reading speech of the noble and learned Lord, Lord McCluskey. The noble Lord was quite tactful not to mention that the noble and learned Lord referred to sheep—that was one of the more moderate aspects. I appreciated what the noble and learned Lord had to say. One of the points he made in that the proposal is relevant to the amendment before us. It was about the standard of pre-legislative scrutiny by the committees of existing Members of the Scottish Parliament. If the noble Lord, Lord Foulkes, believes that there is a field of 92 people in Scotland who can provide a higher standard of scrutiny—quite apart from the cost and the time involved—I salute him for his optimism, but I wonder whether, with all the guidance that many of these so-called amateurs might need, he will be able to find them.

On the other hand, I look around your Lordships’ House this evening and find my noble friend Lord Dundee. When it comes to cost, I am tempted to think of the chant “Up with the wallets of bonnie Dundee”. He might be paying, or some of us might be thought to be rich enough to pay ourselves, but I am not too sure. If your Lordships would care to glance at the Second Reading speech and comments of the noble and learned Lord, Lord McCluskey, if I were a Member of the Scottish Parliament, I would repeat the wise words of the Vietnamese gentleman Do Duck Low and stay well out of the criticisms that have been quite justifiably directed in that area. I commend the noble Lord, Lord Foulkes, for his imagination and thought, but on the other hand I dread to think what the cost might be.

--- Later in debate ---

In his very useful report, these procedures are strongly advocated by the noble Lord, Lord Smith, who also stresses the importance of transparency, building good practice and extending devolution to Scotland’s regions and localities. The purpose of the amendment is to link those exhortations to the Bill. I beg to move.

[The Earl of Kinnoull]

My Lords, I am attracted by the thinking behind this amendment. I remind your Lordships of a few lines from the Smith commission report, headed, “Inter-governmental working”:

“Throughout the course of the Commission, the issue of weak inter-governmental working was repeatedly raised as a problem”.

It went on:

“Both Governments need to work together to create a more productive, robust, visible and transparent relationship”.

Then, later on:

“I would encourage them to find solutions”.

This amendment, and the thinking behind it, drives at that area and, therefore, has my total support.

Following on from the point made by the noble and learned Lord, Lord Hope, and the noble Lord, Lord McAvoy, it is a pity that the SNP are not here to talk to this issue. Thanks purely to their party political policy, they, as the self-styled voice of Scotland, are not here voicing their opinions or advancing amendments. Indeed, we would have none of its amendments were it not for the work of the noble and learned Lord, Lord Hope. I regret this self-inflicted state of affairs.

Anything which promotes co-operation, co-ordination and communication is part of the business of good government. I thought it would be helpful for your Lordships to have one real example of the problems associated with devolution. I am the chairman of the Red Squirrel Survival Trust, a UK-wide charity which is doing pretty well what it says on the tin. Red squirrels run backwards and forwards across the border between England and Scotland with no barrier. In the autumn of 2013, I had a meeting with two senior officials from Scottish National Heritage; men of great calibre and enthusiasm. During the meeting, it came out that they did not know their opposite numbers in England or their telephone numbers. A red squirrel is a UK-wide mammal which is severely endangered, but communication totally broke down at the point of devolution. Being the men they were, they instantly began working at a solution and something called the United Kingdom Squirrel Accord, which covers problems for both red and grey squirrels and for broadleaved trees, grew up. I am, in fact, the chairman of that as well and I salute its work. That is an excellent example of where, if communication, co-ordination and co-operation break down, you get bad government, not good.

[Lord Foulkes of Cumnock]

I will just intervene, rather than make a speech. I agree absolutely with the noble Earl and with the amendment. I do not know whether the noble Earl has heard but at Question Time I regularly ask UK Ministers, again and again, what discussions they have had with their Scottish counterparts. Invariably, it is none. They ought to meet with them more often. The trouble with Westminster, and Whitehall in particular, is that they do not pay enough attention to the devolved Administrations where there are the kind of issues, such as the red squirrels, which the noble Earl mentioned.

[The Earl of Kinnoull]

I am grateful to the noble Lord: I had heard that. It is an endemic issue. With the squirrel accord, various governmental bodies from the Welsh, Northern Ireland, English and Scottish Governments now actually sit together once a quarter. If they cannot do so, they are on the telephone. They know each other and have to meet face to face once a year. I feel a bit like a schoolmaster there, but it is extremely effective in this one tiny area. The amendment, and the thinking behind it, could be very effective because the nature of this report will be to find out where there are weaknesses. We have very high-quality officials north and south of the border and, once a problem is identified, they have the ability to sort it out. Therefore, the thinking behind the amendment deserves consideration, if not, perhaps, its precise wording. It is very much within the scope of the Bill, given the quote that I read out. I commend it to the Committee.

[The Earl of Lindsay (Con)]

My Lords, I, too, strongly support this amendment. If I have a quarrel with it, it is that I do not think it goes far enough. If I have read the amendment correctly, it focuses simply on the provisions of the Bill when it becomes an Act. The focus on the quality and quantity of co-operation that does or does not exist should go beyond just what this Bill is seeking to achieve; its scope should include all the provisions and measures that have led to the devolved constitution we now have.

For a similar reason I wonder why this amendment seeks just a single report on the level of co-operation that is being achieved. That co-operation is such an important continuing ingredient of a successful devolved constitution that it should not simply be subject to a single one-off review and report.

The perspective that I bring to this precedes the wisdom that the Smith commission added in this area and goes back to the Calman commission, of which I was a member. Noble Lords may remember that the longest chapter in the Calman commission report turned out to be chapter four. We came up with 25 recommendations under just that chapter, which concerned strengthening co-operation. The evidence that we took on the need for co-operation was compelling. The evidence from other countries with stable and successful devolved constitutions was especially compelling. It was quite clear from that evidence that the ability of different Governments and Parliaments to co-operate and work together in a constructive and structured manner is an absolutely fundamental ingredient of a resilient, flexible and successful devolved constitution. There was nothing ambiguous about the evidence that we took.

We also took evidence on the extent to which people in Scotland and interests in Scotland expected there to be constructive co-operation between the Governments and Parliaments of the United Kingdom and Scotland. They expected it to be a norm, not an exception. However, the depressing conclusion that we came to when we reported was that, apart from a few bright spots, good, constructive co-operation between the United Kingdom and Scotland was an exception, not a norm. Therefore, I very much support the direction of travel of this amendment. However, as I said, I would go very much further and widen its scope to include all the measures that comprise the devolved constitution, and I would make it a continuing or regular discipline rather than a one-off one.

Scotland Bill

Earl of Kinnoull Excerpts

Tuesday 24th November 2015 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, what a pleasure to follow that wonderful speech from the noble Lord, Lord Campbell of Pittenweem. As ever, it was perceptive and thought-provoking. I note that in the short interlude since his promotion from the other place he has lost none of his eloquence nor the stamp of wisdom. He was most modest about his many achievements. The House is very much aware of his political ones, but he shone too in a stellar athletics career, holding the 100 metres record for Great Britain for seven years. He was an Olympian and also captain of the Great Britain athletics team for a couple of years.

One achievement that he is not aware of, and which I think is an equally great achievement, is capturing the vote of my grandmother. She was a constituent of his who lived in Elie, a neighbouring village of Pittenweem, and a life-long Conservative. She cited his great charm and his common sense, and we have seen that evidenced today. I think we can look forward very much to his further contributions in debates.

I declare my own interests as set out in the register of the House, especially as a Member of your Lordships’ House who lives and farms in Perthshire.

At this important stage of an important Bill, it is a great pity that we will not hear at all from the Scottish National Party. As a matter of SNP party-political policy, its members have refused the offer of appointments to your Lordships’ House. The result is that at least a part of Scotland has no voice in proceedings today and no method of advancing some, or indeed any, of the many amendments that the SNP put down in the other place, which were substantially not debated. I am sure that many in the House today regret this self-inflicted state of affairs. It would be very interesting, for instance, to have the SNP’s view on the fiscal framework and the second no-detriment principle.

I have at home a handwritten set of the minutes of the 1706 meetings between the commissioners for Scotland and England that gave rise to the union, and I spent part of last weekend rereading it and reflecting on it. It is a fascinating document dealing with the proceedings over several months, between April and July that year. The early part of the proceedings were very much about political structure and the later part about financial matters—Scotland being effectively bankrupt at the time. The symmetry of history means that one could cast this Bill as substantially being the final financial follow-on to the political settlement of devolution.

Put simply, the Smith commission agreement hands more power to Holyrood, substantially over financial matters. However, the Parliament or Government who are to receive the new power must be ready to receive it. There has recently been considerable public comment about perceived failings in Scotland today—very ably summed up by the noble Baroness, Lady Liddell, in her powerful speech, which I look forward to reading again tomorrow. The criticism is directed at government performance and at the way in which Holyrood scrutinises new legislation. On this latter point, I have some direct personal experience—which I will not go into today for timing reasons—and I cannot see how MSPs, with their heavy constituency programmes, can lend the time required for the sort of careful scrutiny that your Lordships undertake; I hope that this scrutiny point is being thought about in Holyrood with a view to change. Accordingly, we must be very careful not to overimplement the Smith commission report.

Turning to the specifics of the Bill, given that there are some 40 speakers I will comment only on Clause 34, which concerns the Crown Estate. Currently, the Crown Estate is managed by the independent Crown Estate commissioners, pursuant to the Crown Estate Act 1961. The make-up of the commission is, by custom and practice, politically neutral, as it looks after so much of great national importance. The commissioners have done a very good job over the years and, in the last financial year, returned £285 million to the Treasury. The Scottish assets within the Crown Estate render a much larger percentage of the Crown Estate income than the 10% or so that Scotland might get through the operation of the Barnett formula. Accordingly, this became the subject of a Smith commission discussion about money.

In closing, I put three questions to the Minister. First, the Smith commission agreement calls for the assets to be transferred to the “Scottish Parliament”. In the Bill, this has become “Scottish Ministers”. The proposed move is therefore from apolitical commissioners to highly political Ministers. Can the Minister explain this change? Secondly, the Smith commission envisages further onward devolution to various named local authorities, as was pointed out by the noble and learned Lord, Lord Wallace of Tankerness. The Bill is silent on this. Can the Minister explain this? Finally, can the Minister confirm that it is the intention in this Bill to ensure that in future the Scottish assets are held on an exactly analogous basis and cannot be used for political purposes? The Crown Estate commissioners have an excellent record of service to the United Kingdom, and I very much hope that the new Scottish replacements will maintain these high standards and that this Bill will act as a strong constitutional document for them.