Devolution (Constitution Committee Reports)

Earl of Lindsay Excerpts

Monday 9th October 2017 Lords Chamber

[The Earl of Lindsay (Con)]

My Lords, I welcome my noble friend Lord Duncan of Springbank and warmly congratulate him on his appointment to the Scotland Office. He brings very valuable experience to that role and to this House. His career has seen him working for the Scottish Refugee Council and the Scottish Fishermen’s Federation and he knows the length and breadth of Scotland in considerable detail. He also brings a very timely experience to tonight’s debate in that he has worked for the Scottish Parliament, which has seen him gain first-hand experience of the JMC in action.

I also thank my noble friend Lord Lang and the noble Lord, Lord Jay, for introducing their excellent reports. I would happily speak on all three reports but, for the sake of brevity, I want to focus on the issues raised in the report from the Constitution Committee on Inter-governmental Relations in the United Kingdom. In introducing it, my noble friend suggested that his report remains relevant and valid. Sadly, this is the case. It is very disappointing that in October 2017 intergovernmental relations within the United Kingdom remain as much of a concern requiring urgent attention as they were when the Constitution Committee published its report and recommendations in March 2015, two and a half years ago.

The disappointment is all the greater given that some months before the Constitution Committee published its report and recommendations in 2015, the then Government had accepted a key recommendation on the importance of achieving better intergovernmental relations from the noble Lord, Lord Smith of Kelvin, which he issued when the Smith commission launched its report in 2014. The recommendation from the noble Lord, Lord Smith, was:

“Both Governments need to work together to create a more productive, robust, visible and transparent relationship. There also needs to be greater respect between them”.


The Government, in their response to the Smith commission, agreed with his call for greater intergovernmental co-operation and respect with the following statement:

“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 Government made that commitment nearly three years ago.

It has to be said that the recommendations of the noble Lord, Lord Smith, in 2014 and of the Constitution Committee in 2015 were not the first time that the Government had been told that the need for greater intergovernmental co-operation was a problem that needed to be urgently addressed. Five years earlier, in June 2009, a similarly urgent call for action was put to the Government by the Calman commission when it published its report and recommendations on Scottish devolution.

I was a member of the Calman commission, as was the noble and learned Lord, Lord Wallace of Tankerness. He and I both have particular reason to recall that the importance the Calman commission placed on both intergovernmental and interparliamentary co-operation was such that it became one of the longest chapters in our report and ran to 23 separate recommendations. I believe that it ran to something like 40 pages. We deliberately put it at the heart of the Calman commission report because we saw it as being such an important strand.

That call for action from the Calman commission was issued over eight years ago. The call for action from the noble Lord, Lord Smith of Kelvin, was made three years ago. The call for action from the Constitution Committee was made two and a half years ago. Here we are in late 2017, three calls for action later, still needing to see greater action and greater progress being sought and achieved. I am not suggesting that nothing has happened since 2009 to improve intergovernmental relations, nor am I underestimating the difficulty of strengthening co-operation when one of the parties involved is happy to see it frustrated. However, if you look at the timeline from Calman to today and the actual detail of the recommendations that were issued in 2009, 2014 and 2015, it is deeply disappointing that more progress has not been made. I echo the lament of my noble friend Lord Lang that there seems to be no sense of urgency.

The message over eight years has remained constant and unambiguous—that the need for co-operation is compelling and that good intergovernmental relations, alongside the ability of different Governments and Parliaments to co-operate and work together in a constructive and structured manner, are essential ingredients of a stable, devolved constitution. How can greater progress be achieved going forward and how can it be achieved without further delay? My noble friend suggested that we need a new attitude and a new mindset and I agree. I believe that we need a new focus, new energy and new determination.

The recommendations of the Calman commission and the Constitution Committee need to be dusted off and reviewed with a commitment to implementing a series of fresh measures. Many of the recommendations of Calman and the Constitution Committee are relatively modest or straightforward. Few require any legislation and all are practical and focused on delivering improved intergovernmental and interparliamentary relations. Therefore, the question is: where do we look for the much-needed new focus, energy and determination that need to be brought to bear? I was interested to hear my noble friend Lord Lang suggest that our noble friend on the Front Bench would bring a fresh eye to this. I completely agree. He is new to his role and intergovernmental relations are an important dimension of his ministerial responsibilities. As I said at the beginning, his career to date is very well suited to someone who wants to bring fresh energy to the intergovernmental sphere, as he has worked for the Scottish Parliament and seen the JMC in action.

Furthermore, those noble Lords who know my noble friend know that he does not lack focus, energy or determination. Therefore, I very much hope that when he sums up, he will set out not only the Government’s commitment to the early delivery of further measures designed to improve intergovernmental relations across the United Kingdom but also his own commitment as a Minister with Scottish and Welsh responsibilities to ensure that rapid progress is made.

Energy Bill [HL]

Earl of Lindsay Excerpts

Tuesday 12th April 2016 Lords Chamber

[Baroness Worthington]

My Lords, I was not intending to speak on this amendment, but, as the noble and learned Lord, Lord Wallace, was kind enough to refer to me, I want to ask a simple question. I want also to pay tribute to the commitment shown by the noble and learned Lord in the detailed way in which he has approached this question and sought to canvass a wide section of views on this clearly still controversial topic.

My question is more about the future. The Government are doing what they wish to do and it is clear that we need to see a pathway towards all renewables standing on their own two feet, supported, one hopes, by a carbon price which makes investment in cleaner technologies a sensible way forward. My question is in relation to another event that has taken place since we last considered this matter, which is the announcement about the auctions of CFDs. I understand that onshore wind will not be eligible for CFDs. I wonder whether there has been representation from Scotland in that decision-making process, since many questions about eligibility for the RO could be alleviated if there was access for Scottish wind farms to a CFD or equivalent that Scotland could determine. That is my question. It is less about the detail looking backwards over this government statement than about the Government saying something reassuring about repatriating an element of energy control to Scotland to enable it to persevere with this industry, which is clearly very important to it.

[The Earl of Lindsay (Con)]

My Lords, I support the amendments in the name of the noble Lord, Lord Foulkes, and of the noble and learned Lord, Lord Wallace of Tankerness. In particular, I want to speak to Amendments 7AA and 7AM in the name of the noble and learned Lord.

As the noble and learned Lord said, there are two important realities that these amendments seek to address. The first is that planning regulations in Scotland, unlike in England, require a set period of pre-engagement. This means that the submission of a major planning application can take place only once a statutory three or more months of consultation have taken place. In Scotland, therefore, between three and six months is added to the equivalent statutory period that applies in England. In effect, the lodging of this proposal of application notice in Scotland is at exactly the same point in the process as the lodging of a planning application in England. In other words, it is the start of the formal planning process either side of the border.

The second reality that the noble and learned Lord’s amendment seeks to address is that projects involving community equity are inherently disadvantaged alongside established developers in terms of the speed with which they can develop their projects, the level of finance that they have available, the time it takes them to get the requisite level of finance and the relative risks they take in getting a project to a particular stage by a particular date. Securing the initial funding for a community stake takes valuable time before the actual planning process can even be initiated.

As a result of these two realities, the Scottish planning regulations and the challenges facing community projects, this Bill would lead to the following scenario. A community-based project could be stopped dead in its tracks despite a significant investment involving a community shareholding having been committed well before 18 June, despite that project having been firmly and formally within the Scottish planning process since well before 18 June and despite all other grace period criteria having been met. Such a scenario would be a regrettable and, I believe, unintended consequence, especially given the importance that the Government attach to the involvement of local communities in, and their support for, onshore renewable projects. As the noble Lord, Lord Foulkes, said, that aspiration was expressed in the Conservative manifesto.

On the concerns expressed by the noble Baroness, Lady Quin, at the same time as such a community project would be stopped dead in its tracks, other cases that were refused planning permission before 18 June by the local planning authority—in other words, they did not have local support—but were subsequently granted on appeal would be able to accredit under the grace periods, while a genuinely community project which is fully committed by 18 June, with full local support and equity ownership, would not. The noble Baroness has therefore raised a very serious concern.

Such a scenario would be addressed by Amendments 7AA and 7AM in the name of the noble and learned Lord, Lord Wallace of Tankerness. They would ensure that community projects that had committed significant financial resources, that had been in the formal planning process well before 18 June and that now had permission and accorded with all the other grace period requirements were given a reasonable grace period to deliver.

Like other Members of this House, I have been grateful to the Minister for his willingness to correspond and engage on the issues relating to this Bill, and I am grateful for the correspondence that I have had with him about the issues behind the amendments. I want to reassure him on two concerns that he raised with me. The first was a concern that, in accepting these amendments, there would be significant additional deployment. This is not the case. Research through RenewableUK data demonstrates that the amendment would lead to an additional deployment of only 45 megawatts, as the noble and learned Lord, Lord Wallace, said. That is less than 0.1%—that is, 1/10th of 1%—of the current annual ROC spend.

My noble friend the Minister also expressed the view that the amendments run counter to policy intent. I can reassure him that they do not. They are about improving in a very precise and limited way the flexibility in how the Bill would apply, especially in Scotland. The amendments are modest in their intent and negligible in their cost and therefore in their impact on the ROC budget, yet, as we have heard from other noble Lords and especially the noble and learned Lord, Lord Wallace, they would deliver significant local benefits.

I hope that the House and especially my noble friend the Minister will support the amendments or at least consider them constructively. They deal with the very lengthy pre-application consultation requirements in the Scottish planning system and with the challenges that community projects face. I will listen carefully to my noble friend’s response, and hope it is a positive one.

Scotland Bill

Earl of Lindsay Excerpts

Tuesday 6th September 2011 Lords Chamber

[The Earl of Lindsay]

My Lords, I thank my noble and learned friend the Minister for introducing the Bill to the House. I declare an interest as a member of the Calman commission and, in doing so, I express my broad support for what the Bill intends to achieve and the opportunity that it provides for implementing the recommendations put forward by the Calman commission.

I have listened with care to the concerns and fears that a number of noble Lords have expressed about the fact that the landscape and circumstances have moved on since the Calman commission reported in 2009, as well as concerns that there may be unintended consequences from some of the Bill’s provisions. The value of the process that the Bill will be subject to in this House is that we can both test those fears and test the robustness of the provisions that were rooted in the Calman recommendations in the light of modern circumstances.

Equally, I should like to caution noble Lords against seeing the proposals in the Bill purely from the political end of the telescope. Those of us who served on the Calman commission were struck by the extent to which there is a real appetite within civic Scotland for an increase in choice and responsibility and the extent to which there is a desire within the Scottish Parliament to serve the people of Scotland better. There is a real appetite for a Scottish Parliament that is more financially and fiscally accountable to the people of Scotland. Therefore, there is not just a political manifesto lying at the root of the provisions of the Bill; there is a real strength of view in non-political Scotland that these provisions will be good for Scotland, and the quality, quantity and diversity of the evidence that we took from civic Scotland underpinned that assertion.

The noble Lord, Lord Elder, made a brief reference to the process of the Calman commission, which helps to underline the point that I have just made. We sat for well over a year. We met almost weekly at times. We received a substantial amount of evidence in a variety of formats designed to engage with the widest possible range of views across Scotland. We sought views on everything that was raised with us and we also sought counterviews. We did that not once but twice in that the commission had a two-part process. We also sought independent expert advice as necessary, and we spent some considerable time understanding the experience of other countries with devolved Governments.

The sum of those efforts was that our report was shaped not by our own preconceived views or by the political mafia but by the sheer weight of evidence, submissions and advice that we received across the length and breadth of Scotland, and largely from civic Scotland. To further put the Calman commission report into a proper context, the report and recommendations were unanimously endorsed by all its members. The commission had a majority of non-political members from different parts of Scotland, as described by the Minister in his opening speech, and we shared a wide range of backgrounds. However, the endorsement of our recommendations was unanimous, and I take this opportunity to pay tribute to the deft and wise chairmanship of Sir Ken Calman.

Since the Calman commission formulated those recommendations, the proposals in this Bill have been further subject to scrutiny, amendment and improvement within the Scottish Parliament and in the other place, as well as by committees, as described by my noble friend, in your Lordships’ House. I hope and believe that the proposals that we are looking at are going to deliver the benefits that we were tasked with securing when we set forth on the Calman commission remit. Ten years after the Scotland Act 1998, a review of how it worked and a revision of certain boundaries has been a sensible exercise. Queries raised by various Members about specific proposals in this Bill with respect to some of the changes in devolved or reserved matters can be studied in greater detail in Committee. It illustrates that there are boundaries between devolved and reserved powers which require continuing surveillance and discussion.

The improvement in the financial accountability of the Scottish Parliament is also going to be a beneficial step. The extent to which beyond the Scottish income tax it is able to raise new taxes, which my noble friend Lord Forsyth mentioned, is, I understand, subject to the approval of the United Kingdom Parliament, but perhaps my noble and learned friend might confirm that. The commission recognised the complexity of the recommendations for a Scottish income tax. We recognised the need to understand and anticipate the logistics, administration and operation of such a proposal before it came into effect. We recognised the need to avoid unintended consequences from the proposed Scottish income tax. We were categorical in our view that no such proposal should take effect until considerable time had been spent preparing and understanding the ground, and that that prior work should be followed by transitional arrangements when the Scottish income tax was introduced so that further teething problems could be properly dealt with.

The Scotland Bill takes forward the commission’s recommendations that require primary legislation. These are set out in parts 3, 5 and 6 of the commission’s report. I would like to draw the House’s attention to part 4, entitled “Strengthening cooperation”, as the commission saw the recommendations set out there as being of special relevance to the recommendations requiring primary legislation. Tonight’s debate on the various proposals for legislative change, and some of the comments and concerns that noble Lords have expressed, further emphasise the importance of this part of the report in dealing with the relationships between Governments and Parliaments.

In paragraph 4.2, at the start of part 4 of the report, we state:

“Between the UK and Scottish Parliaments and Governments, issues regularly emerge that require discussion, co-ordination or joint action. On some occasions this may involve disagreements about policies or priorities. On others there may be broad political consensus but a need to ensure that joint interests are co-ordinated, information is properly shared, the impact of the choices at one level on the responsibilities of the other are recognised, or that different circumstances or institutional background are taken into account.”

In paragraph 4.6 we make the point, and I paraphrase, that wherever there is a boundary between reserved and devolved powers and responsibilities, there is going to be a need for mechanisms to manage the issues that will arise around that boundary. Some of the topics of concern cited tonight range from speed limits to air rifles and energy policy. Wherever there is a division in responsibilities, powers and interests, there is a need for mechanisms that can ensure and manage discussion around that division.

We were firmly of the view that a vital element of the success of any devolutionary settlement is the strength of those relations, both formal and informal, between Governments, Parliaments, other democratic representatives and institutions of the state. This prompted us to look closely at how the arrangements for dialogue, collaboration and dispute resolution worked in practice and had worked since 1998 and whether they could be improved. In doing so, we also received extensive evidence on the widely seen need for Governments, officials and Parliaments to work together and, indeed, on the widely held expectation that, on behalf of the wider public good, such joint working and collaboration would be the norm, not the exception.

In respect of Government Ministers and officials, we considered and took evidence on a number of the mechanisms, such as the Sewel convention, the memorandum of understanding, the various departmental concordats and the joint ministerial committees. We also looked at inter-parliamentary relations. There, we found relatively few mechanisms to promote communication, dialogue, information exchange and even access between Members of the Westminster and Holyrood Parliaments. The evidence that we heard suggested that there is significant room for improvement and a need for more structured relations between parliamentarians and parliamentary committees in London and Scotland.

The general picture on cross-border co-operation was not without one or two brighter spots. We acknowledged that the two Governments can and have worked well together on some issues—for instance, on civil contingencies and in response to bio-security scares. We also recognised that there is a good example of the two Governments and two Parliaments working together regularly and effectively with what is known as the Sewel convention, which, as has been explained by various noble Lords, enables the UK Parliament to legislate for Scotland on devolved matters with the agreement of the Scottish Parliament. I regret that, overall, these examples were relatively few in number, and we were struck by how underdeveloped inter-governmental and inter-parliamentary arrangements are.

This was especially striking when looking at other countries where there are not dissimilar arrangements between sovereign and devolved levels of government. In other countries, these relationships tend to be much better organised, and they are seen as being a key ingredient of a resilient, flexible and successfully functioning devolved constitution.

We therefore came forward in part 4 with a series of recommendations to strengthen the degree, effectiveness and transparency of co-operation at all levels. In fact, of the 63 recommendations made in total by the Calman commission, over one-third of them—23 to be exact—dealt with strengthening co-operation, dialogue and collaboration. Noble Lords will be glad to hear that I shall not go through all 23 recommendations, but I shall give a flavour of one or two of them because they are relevant to the proposals in the Bill and to some of the fears and concerns expressed by noble Lords in relation to it.

In regard to collaboration between Governments, Ministers and officials, our recommendations included reinvigorating and further developing the joint ministerial committee structure and network, making it subject to greater parliamentary scrutiny and transparency. Importantly, we want to see its remit developed so that its primary purpose is to champion and ensure close working and co-operation on joint interests, rather than merely being a dispute resolution of the last resort.

In regard to Parliaments, we made a number of recommendations. These included strengthening the Sewel convention and ending the United Kingdom Parliament's self-denying ordinance of not debating devolved matters as they affect Scotland. If we ended that self-denying ordinance, we would achieve some symmetry with the Holyrood Parliament, where there is no self-denying ordinance to prevent it discussing reserved matters. We recommended introducing a regular “state of Scotland” debate in another place, an initiative that we may want to consider in this House as well. We also recommended strengthening the existing mechanisms of both Parliaments for working together and communicating with each other, either in respect of the Sewel convention or on other matters.

We proposed that a standing joint liaison committee of the UK Parliament and Scottish Parliament be established to oversee the strengthening of inter-parliamentary relations and consider the establishment of subject-specific and ad hoc joint committees of the two Parliaments. Likewise, we proposed that committees of the United Kingdom and Scottish Parliaments should be able to choose to work together when appropriate and that any barriers should be removed in terms of reciprocal access, sharing information and evidence and holding joint evidence sessions. In recognition of the importance of the joint interaction between both Parliaments and Governments, we felt that both United Kingdom and Scottish Government Ministers should commit to respond positively to requests to appear before committees of the other’s Parliament.

We brought forward a large number of considered recommendations in this section, covering other matters such as the conduct of inter-governmental ministerial meetings and Europe. Importantly, we felt that there should be ongoing UK parliamentary oversight and stewardship of the constitution by way of regular scrutiny of the shape and operation of the devolution settlement.

I raise this part of the Calman commission’s report and its 23 recommendations in this evening’s debate for good reason. The ability of different Governments and Parliaments to work together in a constructive and structured manner is a fundamental dynamic in the management of a series of divided and overlapping responsibilities and powers. The ability to manage and collaborate around the boundaries between reserved, devolved and overlapping interests has a bearing on all the proposals in the Bill.

I welcome the Bill. We need to test in Committee and on Report both its proposals and the concerns that have been expressed today. I would welcome an update from my noble and learned friend the Minister on the progress that is being made with the recommendations in part 4 of the commission’s report, because it has underlying relevance to the Bill and to the whole constitutional relationship between Holyrood and London Governments and Parliaments. I would welcome information also on any other relevant plans or initiatives.