Scotland Bill

Lord Boyd of Duncansby Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord Boyd of Duncansby]

My Lords, it was a privilege to serve along with other Members of this House as a member of the Calman commission, and it is pleasing to see its recommendations in legislation before this House, so it will come as no surprise to learn that I support the Bill. In fact, there were two reports from the Calman commission. The first, in December 2008, looked at the broad principles and, as no one else has referred to it, if noble Lords will bear with me I shall consider some of the issues from that report. We attempted to put together principles that would guide the work of the commission and to set out the issues and context for the final conclusions. We asked: what do we understand the union to be? First and foremost it is a political union, a constitutional monarchy that has over 300 years evolved, as the commission stated,

“common political and constitutional values and institutions, which form the bedrock of our liberties”.

We share on these islands a profound commitment to democracy and the rule of law. We have a common citizenship that includes a commitment to human rights and their safeguarding for all our citizens. An integral part of the Scotland Act is the embedding of the European Convention on Human Rights within it.

I am genuinely pleased to see the noble and learned Lord, Lord McCluskey, in his place. He and I have had our differences of opinion, but I recognise his commitment and the contribution he has made not only to Scots law but to this House. I read the debates on the 1978 Bill, which formed a substantial contribution to the 1998 Act. No doubt we will debate the Supreme Court, but I recognise a degree of common approach from the group of the noble and learned Lord, Lord McCluskey, and that of Sir David Edward. I served as a member of the Advocate-General’s expert group. For my part, I think that Clause 17 is about right, but we will no doubt debate that in Committee. I will certainly approach it with an open mind.

Scotland benefits from being part of a state whose overall influence may have waned as the Empire has diminished and is now challenged by new emerging states, but we remain a part of a United Kingdom with a permanent seat on the UN Security Council, a permanent seat on the G8/G20 and a commitment to membership of the European Union. Scotland's influence would be substantially diminished if that union were to go.

We also recognise that the union is an economic one. Sometimes we forget that there were substantial economic reasons for Scotland to join the union in the first place: the establishment of a common currency and a customs union. As the commission stated, we have,

“a deeply integrated economic Union”,

with a,

“well-integrated single market in goods, services, labour, capital and knowledge”,

with common institutions that support the structure within which the market operates: the Bank of England, the FSA, HMRC, the Treasury, and so on. Although the commission did not highlight this, there are other parts of the regulatory framework, for example Ofgem in the electricity market.

The commission was united in stating that that single market and the framework and institutions necessary to sustain it should remain. The irony is that we now have a Scottish Government who wish to secede from the union, with all the advantages that it brings, only to embed Scotland even more deeply in another Union—one that would, over time, require Scotland to adopt a different currency from the rest of the UK and in which it would have less influence.

The United Kingdom is also a cultural union. We speak with substantially the same language. There are substantial ties of family and kinship. We belong to cultural, social, professional, scientific and business institutions that operate across the United Kingdom, albeit ones that often appear to have a Scottish face within Scotland. We share a common history. Together we forged an industrial revolution, built an empire and struggled to provide a better future, securing rights for workers and providing a free health service, education and social welfare. We fought two world wars together and have taken part in many more—some ill-advised and wrong, some heroic and right. In all of that, Scotland has made a contribution to the common history well in excess of its size relative to the rest of the United Kingdom.

In recent decades, we have seen new immigrants to Britain. These have contributed substantially to the cultural diversity of these islands and the multiple identities which Britain holds within it. For all the tensions that that sometimes brings, Britain remains a fundamentally tolerant society. The commission recognised that, as it did the cultural institutions, for example the place of the BBC as a public broadcaster—much criticised at times, sometimes flawed. While some change was necessary to ensure a distinct Scottish influence, fundamentally we did not wish to see the break-up of that institution.

There is also a social union. We share assumptions about the provision of social benefits. We sometimes disagree about how these should be delivered. Despite growing diversity in education and health, we remain across these islands committed to free education—at least up until secondary level—and free healthcare at the point of delivery.

I am sorry that these parts of the first report did not perhaps get the attention that they deserve. Together, these factors are substantial arguments in favour of a United Kingdom. The debate thus far has become somewhat sterile. On the one side, we now have the SNP talking of a mixture of independence-lite or devolution-max without any great attempt to define what it means by that and promises to lull us into a sense of false security that not much would happen were a divorce to take place. On the other side, the language has not always been wholly helpful. We have talked incessantly about separation or secession. It is right to warn people of the dangers of secession but we cannot frighten people into supporting a United Kingdom. Until we start talking the language of inspiration and aspiration, we will continue to lose the argument. I hope that, whatever else we do, we start to talk that kind of language and give people a sense of purpose as to why Scotland should remain part of the United Kingdom.

On the issues of financial accountability, I do not intend to dwell long on the details but certain principles were fundamental to our approach. We were given the remit of addressing the issue of improving financial accountability of the Scottish Parliament. We were greatly helped by the independent expert group led by Professor Anton Muscatelli, which began by setting out a series of principles that would guide its work. The commission itself then refined six of those principles into three broad areas.

First, on equity, does a funding system allow levels of funding and hence a distribution of public services generally accepted as fair? Secondly, on efficiency, in both economic and administrative senses, does it impede the efficiency of the system? Thirdly, on accountability, does the devolved body have the autonomy to make spending and taxation decisions for which the electorate can hold it accountable? All of these in my submission are important principles. But there is a balancing act. No solution is ideal, and they will always be traded off, one for the other. We will no doubt debate whether the commission in its recommendation came up with the right mix. I believe it is broadly right because it produces an element of accountability that is not now present, but we will no doubt debate that.

My noble and learned friend Lord Davidson raised the issue of the position of the Lord Advocate, and the suggestion that we should be looking at separating out the role of the Lord Advocate as head of the system of prosecutions from the other functions that he has, perhaps with the appointment of a Director of Public Prosecutions. This of course is not a new idea; it has been around for some time. The role of the Lord Advocate has evolved greatly over the centuries; it is an office that goes back at least until the 15th century. At one time the Lord Advocate effectively ruled Scotland; in the days of Dundas his powers were immense. Sadly, by the time I came into office they had somewhat diminished. But the role of the Lord Advocate did change with devolution, because the spotlight was very much more on the law officers.

I remember when my noble and learned friend Lord Hardie was Lord Advocate—he sat in this House—and I recall in particular a question on search warrants. There had been a number of instances in Scotland where search warrants had been granted by justices of the peace with important pieces missing, and the result was that they were ineffective, and questions were asked about that. The only place where he could be asked questions about them was in this House. That was a pretty ineffective way of holding the Lord Advocate to account, because he was removed from Scotland, and of course this is a House in which only a small minority of Members would have a particular interest in such matters. Suddenly, when we became law officers in the Scottish Parliament, there were 129 MSPs, all of whom had large mailbags full of substantial complaints about the prosecution system. It was, at times, pretty uncomfortable. The noble and learned Lord, Lord McCluskey, helped that process at times, if I may say so, with quite proper concern about, for example, the death of Surjit Singh Chhokar, which he will no doubt recollect. There were other instances, too, where it became extremely uncomfortable to have to answer questions about the prosecution system. When the noble Lord, Lord Steel, who is not in his place, was Presiding Officer, I remember being called to the Scottish Parliament to answer an emergency question on a prosecution matter.

Whatever happens in the future, I believe that that accountability is actually good, although it is uncomfortable. The fact is that I was able, as Lord Advocate, to take through the most far-reaching and profound changes in the prosecution system in Scotland, I have to say with the great help and assistance of the noble and learned Lord the Advocate-General, and more particularly perhaps with the First Minister of the time, my noble friend Lord McConnell. I would not have been able to do that were it not for the accountability that was brought by the Scottish Parliament to those proceedings.

I do not shy away from looking at these issues, but I have to say to my noble and learned friend that my own view is that this is more properly a matter for the Scottish Parliament initially to debate, and for us, the United Kingdom Parliament, to engage with it. That is where the impetus should come from for such a debate, not from the Chamber of this House.

The Scotland Act 1998 was a substantial achievement. The Scottish Parliament got extensive powers. The Canadian provinces have substantially less power in relation to criminal justice than the Scottish Parliament, and that is just one area where the Scottish Parliament has competence. It was, I believe, a considerable achievement but, as the noble and learned Lord said, one of the commission’s conclusions was that devolution had been a success. It had worked for the people of Scotland, it gave people greater access to those who made the decisions and it increased accountability. I believe that the changes in this Bill will strengthen the devolution settlement, make Parliament more accountable for its decisions and strengthen the union.