Scotland Bill

Lord Boyd of Duncansby Excerpts

Tuesday 28th February 2012 Lords Chamber

[The Earl of Caithness]

My Lords, one of the countries was not in the EU.

[Lord Boyd of Duncansby]

My Lords, three amendments in this group—Amendment 47A, 47B and 50A—are in my name and those of my noble friends. I do not intend to speak to, or in due course move, Amendment 47B. Before I get to the meat of the amendments, perhaps I could make a general point about the Bill and the proposals from the Calman commission. The noble Lord, Lord Forsyth of Drumlean, said—I hope that I do not misquote him—that this was dreamed up by a group of politicians who got together to try to prevent an SNP victory. Perhaps I was slightly naive at the time, but I did not think that that was my task as a member of the Calman commission. I am looking at two of my fellow commissioners across the Chamber and I do not think that it was in their remit, either.

In relation to road traffic, we received and assessed evidence. I have just had a quick look at it. Much of it was received from the Association of Chief Police Officers in Scotland. It is true that we commented that it was unfortunate that we did not receive evidence from major motoring organisations representing a Great Britain-wide viewpoint. We took that into account when we reached the view that we did in relation to both drink-driving and speed limits.

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[Lord Forsyth of Drumlean]

I cannot think of an example—perhaps my noble friend Lord Steel could help me—but there are roads in the Borders which go in and out of Scotland and England as you drive along them. If there were differences in the drink-driving limits or the speed limits, would we have signs every 100 yards saying “Now it is 30” or “Now it is 20”, or would we have policemen sitting in a lay-by in England or Scotland, depending on which had the higher limit, and would we have great arguments in the courts as to which part of the road you were on?

My noble friend Lord Caithness, who has now left, talked about driving across Europe. We are not talking about driving across Europe; we are talking about country roads in the Borders. What is the utility that is being achieved here? The arguments that the noble Lord is making, with which I have some sympathy, are arguments about what the limits and rules should be; they are not actually arguments for it being different in different parts of the United Kingdom.

[Lord Boyd of Duncansby]

I am not familiar enough with the borders to say to what extent roads come in and out of Scotland and England. The picture the noble Lord seems to be painting is that every 100 yards it meanders over the border. Of course, I am aware that a river forms at least part of the border. I actually thought that there were more significant difficulties with Northern Ireland and the Republic. I remember reading stories about people having part of their house in the Republic and the other part in Northern Ireland. Of course, you would not drive through a house. Nevertheless, roads probably do meander more over there than they do between Scotland and England. I take the noble Lord’s point; clearly there may be times when there are issues with that. I should think that there will be a common-sense approach between police forces on both sides of the border, as there already is in relation to jurisdictional difficulties, wherever they might arise.

[Lord Sanderson of Bowden]

I may be able to help the noble and learned Lord. The road that I use to go to Berwick—and no doubt the noble Lord, Lord Steel, does the same—goes through a small village in Scotland, in which the speed limit is 40 mph. When you go into England, it is 30 mph. I happened to get caught going at 35 mph in the village of Wark, so there are differences at the moment on these roads.

[Lord Boyd of Duncansby]

I am obliged to the noble Lord for that information.

A number of issues are raised by these amendments as a whole. The first is one of road safety. That has already been raised in the amendment in the name of the noble Duke, the Duke of Montrose, and the noble Viscount, Lord Younger. It was also raised in the amendments that we have put down. There are two particular issues here. One relates to the Highway Code, the other to the driving test.

Paragraph 95 of the Highway Code says:

“You MUST NOT drive with a breath alcohol level higher than 35 microgrammes/100 millilitres of breath or a blood alcohol level of more than 80 milligrammes/100 millilitres of blood”.

It then tells you why you should not do that; alcohol will give,

“a false sense of confidence … reduce co-ordination and slow down reactions … affect judgement of speed, distance and risk”.

Paragraph 124 and the accompanying table in the Highway Code reflect the speed limits, and say:

“You MUST NOT exceed the maximum speed limits for the road and for your vehicle”.

It is of course clear that if Scottish Ministers exercise their powers under the Bill, and vary the limits in either case, that will have a knock-on consequence for the Highway Code and for the driving test. It is important to ensure that people are sufficiently aware of the differences where they exist. It is important that we do not have some kind of Scottish edition of the Highway Code that reflects only the Scottish position but have instead a code that is still a United Kingdom code but that reflects differences in these limits where they exist. On the speed limit, for example, the accompanying table could be quite simply amended to show these differences where they exist.

The Calman commission obviously missed a trick when we decided not to give the power to the Scottish Parliament to change the side on which the traffic moves. Driving on the left seemed to us to remain important.

The other issue raised by the noble Lord, Lord Forsyth, was HGVs. The Calman commission did not distinguish between different types of motor vehicles. I am unclear why that distinction is there and why it remains, and I certainly look forward to a good explanation, shall we say, from the noble Lord, of why that should be. It really does not make sense to have that kind of distinction. He may say that long-distance truck drivers are used to driving over the border, but that raises the question as to why we are devolving it at all. In fact, these very people are more likely to be aware of the differences where they exist. Therefore, if he were to advance that argument, it would not be an argument that I would accept.

The noble Lord, Lord Forsyth, also raised an important issue about penalties. The Calman commission simply looked at the offences and the limits on the blood alcohol and breath alcohol levels and the speed limit. I do not think that we mentioned penalties. However, there is an important point here. A reduction in the limit is more important when one talks about the alcohol limit. For example, there has been talk of a reduction to zero. If that happens, the penalty would be an automatic 12-month ban. Even someone with a minute level of alcohol would be subject to that automatic 12-month ban unless the Scottish Parliament had the power to vary not just the alcohol level but the penalty.

While this Bill devolves responsibility to the Scottish Ministers to set the blood alcohol level, that devolution might be constrained. Ministers might take the view that, while they are in favour of a reduction in the blood alcohol level, the penalties that would necessarily be imposed because they did not have the power to vary the penalty would mean that the penalty would be disproportionate.

Perhaps there is an issue about the ability to amend primary legislation, but this is a very real issue that the Minister has to take away and look at seriously. Otherwise, we would not properly devolve this matter at all and would be giving only one part of a solution to the Scottish Ministers. I hope that the Minister will reflect on that issue as well as on HGVs, and I look forward to hearing from him.

[Lord Maclennan of Rogart]

My Lords, perhaps the noble and learned Lord would explain to me what considerations he has in mind that justify the ability to set different blood alcohol levels north and south of the border. It seems to me that the people who live north and south of the border do not have greater sensitivities to these things. The purpose of the law is not to deal with the problem after the event but to prevent people driving with too much alcohol. The commonality of the law north and south of the border makes it clear to drivers what is acceptable. I cannot think that before they set off to cross the border, people are going to check precisely what milligram limits are acceptable on one side or the other. If there is any doubt about the limits of susceptibility, that ought to be discussed by doctors across the United Kingdom before the law is changed.

[Lord Lyell]

My Lords—

[Lord Boyd of Duncansby]

Perhaps I could first respond to the noble Lord’s intervention. I have to say with the greatest respect that I do not accept the proposition he is putting. In the first place, the number of cross-border journeys that are taken in relation to the entire number of journeys made in the UK is minuscule. Typically, people are caught drink driving over very short distances because they are driving home either from the pub or after having gone out for a meal. The noble Lord, Lord Steel, is not in his place, but let us say he goes from Ettrick over the border to catch his train, having enjoyed a good meal. Before he catches his train, he gets caught because over the border there is a different limit.

[Lord Maxton]

My Lords, will my noble and learned friend give way?

[Lord Boyd of Duncansby]

I will in a moment. The answer is that you should know what the limit is before you set out on your journey, and that should be the case for everyone.

[Lord Maxton]

There is another problem, if we take the example of the noble Lord, Lord Steel. If the noble Lord has a decent meal in the evening with a few drinks, and gets up the following morning and drives his car, he may then be stopped because increasingly, particularly in holiday periods, the police are stopping drivers early in the morning and breathalysing them. Of course, people are not aware of the dispersal rate of alcohol in their bodies.

[Lord Boyd of Duncansby]

The Highway Code is quite explicit: you should be aware of the amount you have drunk the night before. I had people around for a meal recently. They were not driving, but when I offered them another drink, they said that they could not take it because they would be driving the following morning. That is sufficient for me. With respect, I get the impression that people are more and more aware of both the drink-driving limits nationally and the necessity of ensuring that they do not drink in the evening if they are going to be driving the next day.

[Lord Lyell]

The noble and learned Lord is making one point. We have heard a great deal about the limits and the penalties. My noble friend Lord Caithness was driving in Europe and went through three countries. In many countries across the Channel, the limit may be 50 milligrams or thereabouts, but often the penalty is either what I would call a light rap over the knuckles or three months. But if the level is 80 or 100 milligrams, which is what we have, quite often it will be one year or even more. Ever since, I think, 1967, the level has been 80 milligrams and 12 months. If we are going to have lower limits as there are in some Scandinavian countries—in Finland, but not Sweden or Norway so far as I am aware, it is zero; I do not know what the penalties are, whether they fluctuate or vary—would my noble and learned friend the Minister put that into the frame when he comes to respond to this?

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[Lord Cameron of Lochbroom]

The noble Lord raises an interesting point. I would not wish to give any definitive opinion as it is a long time since I have had to deal with these matters. The noble and learned Lord, Lord Boyd, is probably better able to do so, as he has a more modern understanding of road traffic law as a recent Lord Advocate in Scotland. However, these questions arise over a whole series of issues apart from road traffic. We are getting into an area where I wonder whether the kind of devolving of powers that is being sought here is in fact creating more problems that it would do if the whole issue of road traffic legislation—instead of being under the Road Traffic Regulation Act 1984 or the Road Traffic Act 1988—were left as a separate Act that applies within the jurisdiction of the Scottish Parliament. That would be much clearer for members of the United Kingdom.

[Lord Boyd of Duncansby]

The noble and learned Lord threw me that one and I will just take it up. It is true that there are a whole range of United Kingdom statutes that nevertheless require different evidential standards on both sides of the border. There is the Misuse of Drugs Act, for example, where corroboration would be required in relation to those offences that were prosecuted in Scotland but not—I think I am right in saying—in England and Wales. The same, of course, is true of the Road Traffic Act. If I may say so, that possibly just reinforces the point that different jurisdictions will have different rules of evidence and in theory, or at least in principle, there is nothing to stop them having different penalties and limits for particular offences.

[Lord Wallace of Tankerness]

My Lords, I thank noble Lords who have taken part in this debate, which has given rise to a number of important issues. I share with the noble and learned Lord, Lord Boyd of Duncansby, his analysis of how the Calman commission went about its work. My noble friend the Duke of Montrose suggested that we were trying to deliver what the Scottish Executive wanted us to. If only the Scottish Executive had made any connection with the Calman commission—they studiously did not give us any evidence or indication of what they wished—their engagement might have been productive.

As the noble and learned Lord, Lord Boyd, indicated, this was done on the basis of evidence. It was recognised by the commission that there are already different speed limits; there are already powers to set speed limits on local authority roads devolved to local highway authorities through road traffic regulation orders. They are free to use their knowledge and assessment of local roads and may set different speed limits of 20, 30, 40, 50 or 60 miles per hour where they think it appropriate.

There was a view on drink-driving that it was part of criminal law, which is already devolved—but perhaps more importantly there are serious alcohol abuse issues in Scotland. I do not think that anyone is running away from them. The view was that this might be one other measure that could be part of how alcohol abuse could be tackled in Scotland.

Before we get on to some of the more specific issues on speeding and drink-driving, I shall take up the important points that have been raised by my noble friends the Duke of Montrose and Lord Younger as well as the noble and learned Lord, Lord Boyd, on the highway code and the driving test. The amendments to which they spoke seek to ensure that provisions of the highway code reflect the content of regulations made by the Scottish Ministers on speed limits and the drink-drive limit under the powers devolved to them in the Bill, assuming that those powers are actually used and changes made.

I fully agree that the highway code should reflect any changes made as a result of the powers being devolved, but it is important to note that there is no other legislation on the content of the code, either in the Road Traffic Act 1930 or in the supplementary provisions in Section 38 of the Road Traffic Act 1988. It would be disproportionate if the only specific statutory requirement on the content of the code were the few provisions in the Scotland Bill when there is no other such requirement to include any specific items of English, Scottish or Great Britain legislation. The code provides guidance, but it is not a comprehensive description of all road traffic legislation. However, I assure my noble friends that the mechanism exists to ensure that the highway code is accurately and adequately updated. It was referred to by my noble friend the Duke of Montrose that Section 38(2) of the 1988 Act gives the Secretary of State the power from time to time to revise the code by revoking, varying, amending or adding to the provisions in the code in such manner as he or she thinks fit.

Section 38(3) places the Secretary of State under a duty to lay proposed alterations to the code, other than those that are merely consequential on the passing of an amendment or repeal of provisions, before both Houses of Parliament at least 40 days before she proposes to make the changes.

Under Section 38(4), if the House resolves that the proposed alteration should not be made, the Secretary of State must not make the proposed revision to the code. Perhaps significantly, Section 38(5) of the 1988 Act states:

“Before revising the Highway Code … the Secretary of State must consult with such representative organisations as he thinks fit”.

That would include the Scottish Government as was the case during the last major revision in 2005 to 2007.

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[Lord Wallace of Tankerness]

My Lords—

[Lord Boyd of Duncansby]

I can quite understand the noble and learned Lord’s wish to progress matters.

I am not entirely clear where to start. The amendment before this House is that:

“Before commencing discussions with representatives of foreign governments or inter-governmental organisations, Scottish Ministers are required to obtain consent to the discussions from a Minister of the Crown”.

It seems that we have ranged a little beyond that.

Perhaps I should start by declaring that I have had discussions with my noble friend Lord Foulkes of Cumnock. He is at liberty to tell the House what these were. I did not actually warn him about cybernats. I should perhaps advise him that he should not read what they say because they will just make him upset—and at his age he really ought to be careful.

I will try to pick up some of the points that have been made, and make one or two of my own. First, it seems desirable to ensure that there is good co-operation between the UK Government and Scottish Ministers when they are engaged overseas. That has not always happened, and even when the Scottish Ministers were of the same political persuasion as the UK Government it did not always happen. I am not saying that there were any undue difficulties, but sometimes the co-operation broke down. I must however say that, personally, I was always grateful for advice from the Foreign Office. My noble and learned friend Lord Goldsmith, when he was Attorney-General, and I represented the United Kingdom at a conference in China between the European Union and the ASEAN countries on the issue of serious crime. I was due to chair a session of the conference which included the Attorney-General of Burma. I was unclear as to what role I should take in relation to the introduction of the Attorney-General of Burma, and I remember being very grateful for the advice that I got from the Foreign Office on that.

Secondly, it is right that both Governments respect the jurisdiction of the other, and that we recognise the frustration where it is felt that Scottish Ministers go beyond their responsibilities, particularly where it appears that they are pursuing a broader political strategy. However, Scottish Ministers have legitimate areas of activity which involve interaction with foreign Governments and intergovernmental organisations. They have responsibility for implementing directives of the European Union in the devolved area. They need to address vital European Union interests, not just in terms of directives but in terms of policy, and in doing so they interact not just with foreign Governments but with other devolved Administrations. The noble Lord, Lord Morgan, referred to the experience of the German Länder, and the way in which they go about their business.

Ministers also have responsibility for promoting trade, tourism and investment, and that of course necessarily brings them into contact with foreign Ministers and Governments. They also take an active part in intergovernmental organisations and conferences. I recently participated in a conference at the London School of Economics on what was called sub-state diplomacy. I found that quite instructive in finding out the way in which devolved Administrations work, not just in Europe but in other places; learning how Quebec, under both nationalist and liberal Governments, had promoted Quebec, and looking at the experience of Catalonia and the Belgian states in Europe.

It seems unrealistic, if I may say so, to suggest that each time Scottish Ministers were to speak to Ministers of other Administrations they should first get the consent of the Government. First of all, if you are at a conference and you are approached by a Minister of another Government it is not always possible to get that consent. Do you say “I’m very sorry, I can’t speak to you because I need to get consent from the relevant Minister”? As we have heard from the noble Lord, Lord Kerr of Kinlochard, sometimes not even the Foreign Office is able to co-ordinate.

With respect I also ask: what exactly are we attempting to do in this amendment? What sanction do we impose on Scottish Ministers if they do not get consent? We risk giving the Scottish Ministers a tool with which they can claim, yet again, that they do not have the respect of the UK Government, and that they are being gagged while they go about what they consider their legitimate business. That is not just a question of consent. If my noble friend is thinking of coming back with an amendment that they should advise or consult before they do that, the same question arises. What sanction does my noble friend suggest should be visited on a Scottish Minister who does not consult, get consent or obtain whatever other permission is required by this amendment?

We should think long and hard. I endorse a lot of what the noble Lord, Lord Martin of Springburn, said, because he made much the same point in his interesting comment, which of course comes from his long experience, mainly in the other place but also here. We should listen very carefully to these voices before we go down this road.

[Lord Wallace of Tankerness]

My Lords, it has been useful to have this discussion on foreign relations and the devolved Administration and devolved Parliament in Scotland. I share a lot of the analysis of the noble and learned Lord, Lord Boyd of Duncansby, that in fact what this amendment proposes is largely unrealistic. He questions the sanction; we can readily anticipate how it would be spun if indeed it was accepted. Indeed, the noble Lord, Lord Foulkes, accepted himself that the amendment was flawed. That said, the noble Baroness, Lady Liddell of Coatdyke, indicated that certain sentiments were associated with this that we should not lose sight of and quite properly referred to the initiative pursued by the noble Lord, Lord McConnell of Glenscorrodale, when he was First Minister, in promoting Scotland’s links with Malawi. That was done in full consultation and co-operation with the United Kingdom Government and has been widely applauded and respected. It shows that it is possible to have that kind of relationship. Indeed, as the noble and learned Lord, Lord Boyd, indicated, there are legitimate areas of responsibility that fall on the devolved Government in Scotland involving interaction with foreign Governments.

It is important, therefore, that the Committee should be aware that there is a memorandum of understanding or concordat on international relations, which deals with devolved Administration engagement with other Governments and which is therefore relevant to the Scottish Government’s interaction with foreign Governments. Two areas are identified that are of relevance here. Bilaterally, the Scottish Government may, in co-operation with the Foreign and Commonwealth Office, make arrangements or agreements with foreign Governments or international organisations on devolved matters,

“provided that such arrangements or agreements do not purport to bind the UK in international law, affect the conduct of international relations or prejudice UK interests”.

Indeed, I can think of educational agreements that have been reached. It also says:

“The Scottish Government is, however, obliged to consult the FCO in advance about any contact, correspondence, or proposal that is novel or contentious, might create a contingent international liability or may have implications for international relations”.

On international organisations it is sometimes appropriate—and this is recognised in the concordat or memorandum of understanding—for,

“Ministers or officials from the devolved administrations to form part of a UK negotiating team”.

In these circumstances,

“The UK lead Minister will retain responsibility for the negotiations and will determine how each member of the team can best contribute”.

This brings us to the issue that was raised by the noble Lord, Lord Kerr of Kinlochard, and that was spoken to by a number of other noble Lords following his intervention. He asked what the position is. The Scottish Government—his memory served him well—have put forward a proposal to have a statutory right to attend and speak at all Council meetings that relate to devolved matters. It was one of the six proposals that the Scottish Government put forward in the summer of last year. My colleagues in the UK Government are considering this request along with the other requests from the Scottish Government and will respond, but it should be clear that a statutory right to attend would inevitably have an impact on Welsh and Northern Irish representation.

Perhaps we may therefore look at what happens in practice. At present, Scottish Ministers can and do attend Council meetings when devolved matters are under discussion and do so as part of a United Kingdom delegation. My noble friend Lord Stephen indicated that there have been occasions, although perhaps not many, when a Minister from the Scottish Executive, as it then was—and still is—has led. Indeed, on more than one occasion he represented the United Kingdom, albeit as a Liberal Democrat Minister in a coalition Government representing the United Kingdom. When I was the Justice Minister in Scotland, I sat alongside Mr Blunkett when he was Home Secretary. At an appropriate point when Mr Blunkett thought that the matter under discussion was more relevant to Scotland than it was to England, I spoke on behalf of the United Kingdom.

The crucial point is that we spoke to an agreed United Kingdom line. The noble Lord, Lord Wigley, is right that on issues such as fisheries there often can be great tensions, but every effort is made ahead of the Fisheries Council to ensure that there is a United Kingdom line to which whoever speaks is expected to, and does, follow.